美国“F立方”证券欺诈诉讼管辖权规则及其晚近发展

"F立方"证券欺诈诉讼近年来在美国呈迅速增长态势,在美国证券立法框架下,此类诉讼的管辖权主要涉及1934年《证券交易法》中"10b规则"的性质及域外适用问题。2010年联邦最高法院对"莫里森诉澳大利亚国家银行案"的判决,使得"F立方"诉讼管辖权规则开始由"行为"和"效果"标准向"交易标准"转变。而该案之后《华尔街改革和消费者保护法》的出台,以及美国联邦地区法院对"交易标准"的适用与发展,丰富了"F立方"诉讼管辖权的规则内容。美国"F立方"诉讼管辖权规则的发展,也将对我国上市公司以及私人证券欺诈诉讼机制的构建产生一定影响。     

The impact of economic theories on the law in market relations

The impact of economic theories on legal development, thinking and practice is undeniable. This is particularly true for neo-classical and institutional economics. Neo-classical economics are based on model assumptions of human behaviour such as pursuit of personal advantage, individualistic goals, complete information and at the same time law obedience which are the foundations of the functioning of the market mechanisms. The assumption leads to an almost mystical belief in the self-regulatory power of the market and a strong disdain and disapproval of the State. The concepts of a minimal State and de-regulation of all social relations follow from there. This article argues that model assumptions are valid scientific tools, as long as they are not taken to reflect the real world which is populated by real people that are not necessarily behaving like homines oeconomici. Preaching de-regulation and the dismissal of the State can prove simplistic and even dangerous and may lead to financial and economic crises like the ones witnessed in recent years. Institutional economics part from these empirical findings. They do not question individualism and the pursuit of egoistic objectives of market-participants, but they insist on inherent risks of this mechanism which stems from opportunistic behaviour, lack of information and transparency and the limits of trust. Property economists deduct from there that sustainable and dynamic economic development is unthinkable without well defined property title, the distinction of property and possession and credit securities. These institutions cannot be self-regulatory but need a clear legal frame, in other words rules established by a State. Transaction costs economists understand the danger of opportunistic behaviour and a corresponding systemic lack of trust in the negotiation, conclusion and execution of contracts. They underline the necessity of institutions which are capable of limiting these dangers and thus reducing transaction costs. Institutions may be customs, informal arrangements and formal law. At the end two examples are presented-real estate transactions and post-patriarchal family relations-to test the utility of these considerations.     

公司治理机制：主动监督（激励）与退出威胁的选择

公司治理机制可分为两类:一类是委托人的主动监督(激励),一类是出资者的退出威胁.当主动监督方式由公有资产代理人执行时,由于产权残缺的影响,最好利用退出威胁,让市场这支"看不见的手"来约束内部人.对私人企业来说,由于私人产权的完整性可以施加有效的激励与约束,并且对经营者的主动监督是不可或缺的,因此由私人股东运用主动监督(激励)机制是必要且有效的.     

浅议流通费用与交易费用的关系

马克思提出了以流通费用为核心的流通费用理论,而科斯提出了以交易费用为核心的交易费用理论。这两种理论的产生虽然都与流通领域有关,但它们之间却存在着不同。一方面,由于各自立足点的不同,这两种费用的内容存在着不同;另一方面,由于这两种费用的性质不同,它们对经济主体的经济效益有着不同的影响。     

The Impact of Postal Voting on Participation: Evidence for Switzerland

Many countries are forging ahead with convenient balloting methods, in particular electronic and postal voting, in order to re‐engage voters. In this paper, we test whether the cost reductions through postal voting increase turnout. The empirical analysis is based on a newly collected data set on the introduction of postal voting in Swiss cantons. We take advantage of the unique fact that voting by mail was introduced at different times across cantons. This allows identifying the impact of postal voting on turnout, independent of time, issue and canton‐specific effects. The estimated average effect on turnout is roughly 4.1 percentage points for an average turnout of 43 percent between 1970 and 2005.     

The ethical implications of prospective payment and corporate medical practice: A research agenda

The major trends in the growth of prospective payment and the corporatization of medical practice in the United States are examined. In particular, the ethical implications of these changes in the context of the multiple system goals of access, cost containment, and quality are considered. Considerable concern is being expressed that with the dominant emphasis on cost containment, the principles of access and quality might be compromised. This paper formulates a research agenda to address this question, based on a review and synthesis of empirical evidence and hypotheses about the probable or actual impact of these changes on the multiple health system goals. A basic premise is that ethical judgments should be grounded in empirical evidence about what actually is or will be.     

The failure of market failure

The concept of market failure was originally presented by economists as a normative explanation of why the need for government expenditures might arise. Gradually, the concept has taken on the form of a full‐scale diagnostic tool frequently employed by policy analysts to determine the exact scope and nature of government intervention. For some time, economists have known that the market failure idea is conceptually flawed. The authors of this article demonstrate why this is so, employing concepts drawn from the perspective of transaction costs. In a review of empirical studies, they further show how the market failure diagnostic leads analysts to make generalizations that are not supported by facts. Transaction cost analysis helps to explain the underlying processes involved. © 1999 by the Association for Public Policy Analysis and Management.     

双重股权架构的域外经验与中国应对

双重股权架构在美国已经有数十年的实践历史,近年来,亚洲各个冀望迅速推动本地高新企业成长的法域纷纷改变其既往立场,吸纳同股不同权公司上市。2018年,中国香港和新加坡率先在本地区实现了这种规则转变,而中国新设立的科创板也已经允许上市公司采用双重股权架构。中国引进双重股权结构应当谨慎行事,如需引进可以以中国香港规则作为基础...     

The welfare cost of terrorism

Data from 117 countries over the period 2006 to 2011 are used to estimate a macroeconomic cross-country system of equations that examines the association between terrorism, self-reported life satisfaction, and national income. Results indicate that terrorism is negatively associated with life satisfaction, whereas no such association is found between terrorism and real GDP per worker. Stark contrasts are found, however, between OECD and non-OECD members. In all, our results suggest that the social costs of terrorism are potentially much higher than the economic costs, and measuring only the conventional economic costs of terrorism significantly underestimates the true costs.     

The Interaction Effects of Bargaining Power: The Interplay Between Veto Power,Asymmetric Interdependence,Reputation, and Audience Costs

In international relations, different rationalistic theories have developed to explain negotiators’ behavior and the outcomes of negotiations. The compatibility and interaction effects between the different forms of bargaining power, however, remain unexplored. In this article, I seek to fill this gap by connecting four rationalistic concepts of bargaining power: veto power, asymmetric interdependence, reputation, and audience costs. By showing that domestic veto players are only semiveto players in international politics – because they can veto an improvement but not a deterioration of the status quo – threats based on asymmetric interdependence to disrupt a mutually beneficial cooperative relationship can be connected to veto power; the incompatibility of the factors concerned would otherwise make this impossible. The combination of veto power and asymmetric interdependence, however, raises a theoretical question: Will rational actors ever approve a deterioration of the status quo? Theories of reputation and audience costs can help answer this question. According to these approaches, threatening parties suffer ex post costs when they back down from their own threats. This theoretical analysis sheds new light on how different forms of bargaining power interact with each other and also helps to address some of the theoretical inconsistencies of the original individual concepts. Finally, this analysis suggests some of the weaknesses of empirical studies that have neglected these interaction effects.