论商事信用法律控制中的道德问题

商事信用秩序的维护乃是市场秩序确立的根本前提。商事信用渊源于道德信用 ,尽管商事信用是法律信用之一种 ,在现代商法中 ,商事信用有着确定的法律含义 ;但是从另一方面来说 ,商事信用在实践效力上 ,一般采取道德自律的手法 ,只有在当事人违背其信诺 ,造成了法律上的后果时 ,才由法律加以调整。即使是在法律调整时 ,道德的作用亦常常是与法律之效力相统一。但是商事信用毕竟与道德信用有着本质的区别 ,所以 ,在商事信用的实践中 ,道德与法律之界别 ,尤其是道德对商事信用秩序的控制问题成为现代商事信用研究中的重大理论问题。本文主要从商事信用涉及的商事利益、精神人格、社会规律、哲学依据及调整手段等方面对这一问题逐一进行研究 ,试图解决商事信用秩序控制中的道德问题。     

GM and corporate responsibility

Only by distinguishing corporate, moral, social and legal responsibility can GM know how to weigh and respond to its various responsibilities. Corporate responsibility stems from the ends for which the corporation is formed. In addition the corporation is responsible for meeting the moral demands that come from the moral law. The corporation is responsible for meeting legitimate social demands proposed by society. If society uses the law to express its demands, the demands yield legal responsibilities. Those demands that are social but neither moral nor legal may not be legitimate demands that GM must respond to at all. Richard T. De George, University Distinguished Professor of Philosophy at the University of Kansas, former President of the Metaphysical Society of America, and Vice President of the International Federation of Philosophical Societies, is the author of Business Ethics and contributing co-editor of Ethics, Free Enterprise and Public Policy.     

高校大学生法律意识养成之客观因素

人类社会进程的新陈代谢决定了大学生这个特殊的精英群体是关系国家和民族兴衰成败的未来有生力量,而法治文明则是实现国家繁荣和民族复兴的必由制度路径,大学生现代法律意识的培养因此构成一项关系到社会主义法治建设的巨大工程。法律意识之养成在于塑造一个法律世界观,但科学合理的法律世界观之形成应依赖客观因素之促进。良好的外部法律环境是健全和改善高校大学生法律意识的最佳途径。必须区别对待我国法律文化传统的积极和消极方面,立足传统并通由有策略的高校法制教育、司法的社会感召等措施培养、引导高校大学生的法律意识之养成。只有在“四有”新人的基础上补上“有法律”这一缺环,这样的民族才是有希望的民族。     

The responsible shareholder: a case study

Shareholders are sometimes considered to be, in moral terms, the owners of a company, they are after all the carriers of the residual liabilities and bear a higher proportion of the financial risk. However, in company law, the shareholders' responsibility is limited, and in financial terms shareholders are only liable up to the fully paid value of the share certificate. Moreover, when the shares are sold, the responsibility and risk are transferred completely to the new bearer of the shares. Whether this gap in moral and legal perceptions can be judged to be satisfactory in business ethics terms is a moot point and will be partly explored in this case study which seeks to analyse the shareholder's responsibility towards a firm in which they own shares. The case study company chosen as a vehicle to explore these issues is that of Turner & Newall; a company that subjected its employees, communities and customers to a major health hazard – asbestosis. This paper will use the Turner & Newall archive materials to illustrate the moral hazards that can arise for shareholders. In particular it will examine the ethical responsibilities of shareholders towards those stakeholders who were exposed to the dangers of asbestos. This case is a significant test of the veracity of the legal system of company control, and exposes the ineffectiveness of that system in accountability terms. The case study also deals with specific issues that arose in the asbestos crisis, as well as with more general issues in our present system of corporate governance and shareholder responsibilities.     

Ethics of contract pricing

This study explores the legal and ethical issues associated with contract pricing. In particular, it focuses on a set of legal precedents which have addressed the enforceability of allegedly unfair contract prices. Traditionally, the common law has emphasized the consent of the parties. If the parties consented to a given price; it is presumptively fair and enforceable. The cases reviewed in this study, however, seem to draw upon alternative moral conceptions of fairness not normally associated with the common law. The analysis begins by distinguishing the traditional legal conception of fairness from alternative moral conceptions. The cases are then read with a critical eye so as to tease out the underlying principles which best explain them. The analysis illustrates that, notwithstanding judicial rhetoric to the contrary, the courts continue to employ the traditional legal notion of fairness, to the exclusion of alternative moral concerns. The study clarifies an otherwise murky area of the law and illustrates that the legal meaning of fairness differs greatly from the moral one.Daniel T. Ostas is an Assistant Professor at the College of Business and Management, University of Maryland. He holds both a J.D. and a Ph.D. A member of the Indiana Bar since 1980, Dr. Ostas has published several articles on real estate and antitrust law. This present paper derives, in part, from his dissertation entitledEconomic Logic of Unconscionability Adjudication.     

微博著作权法律保护相关问题探讨

微博内容虽短小精炼,却并不因此否定其著作权的存在。微博著作权的法律确认和对微博著作权侵权责任之追究,成为微博经济发展需求下的微博著作权保护的主要内容。而如何确认微博著作权,如何依据微博著作权的侵权类型明确微博著作权侵权标准、完善微博著作权侵权证据制度、确定微博著作权侵权损害赔偿标准,则是需要大家审慎思考的问题。同时,微博著作权法律保护,单靠侵权防范的法律规制是不够的,还得依赖于网络用户的道德水准与自律水平。只有完善的法律制度与高尚的网络道德相结合,才能最终实现微博著作权的法律保护。     

企业社会责任的法律思考

企业社会责任最初以道德责任的形式出现,后来,一部分企业社会责任逐渐发展为法律责任和软法责任,并同道德责任并存.由于法律责任能够依靠国家强制力保障实现,因而法律责任化后的企业社会责任的实现便变得非常确定.当然,企业社会责任的法律责任化也会受到诸多因素的限制,在条件允许的情况下应尽可能扩大法律责任化的范围.企业社会责任的发生原因、主要机制和发展趋势等问题在理论上值得探讨.     

Corporate Social Responsibility and International Human Rights Law

The United Nations Special Representative on Transnational Corporations and Human Rights, John Ruggie, has adopted a new framework for considering this issue within the international legal system. This article examines this framework in terms of its coherence, its consistency with international human rights law and how it can be ‘operationalized’ (which is required by the United Nations). In regard to the states legal obligation to protect human rights, it is considered whether this obligation is broader and deeper than is envisaged in the framework, especially if it can include the extra-territorial activities of corporations. The corporate responsibility to respect human rights is examined in terms of its conceptual and definitional problems, and the article also questions whether there will be sufficient legal remedies available to victims under the framework.     

Consumer Class Actions: Are They a Solution for Enforcing Consumer Rights? The Israeli Model

Class actions were introduced into the Israeli legal system in order to overcome the difficulties in the enforcement of consumer laws. Despite extensive consumer legislation during the 1980s, consumer laws were not enforced until the mid 1990s. Only since the incorporation of class action procedures in the Consumer Protection Law in 1994 have consumer actions become more common. The introduction of class actions under the Consumer Protection Law (CPL) led to a revival of consumer protection law. As a result, legal discourse in the field of consumer law has completely changed. Nonetheless, even after 1994 more than 90% of class action applications were dismissed at the early stages. This paper analyses the reasons for the poor results of this procedure, and suggests reform by amending the CPL. The conclusion presented in this paper is that consumer class actions have great potential, but that their correct implementation depends on a better understanding of the purpose of consumer legislation.     

The Israeli approach to advertising: ethical and legal norms

The Israeli approach to advertising consists of two complementary sets of norms, legal norms and moral‐ethical norms. Advertising legislation demands honest disclosure. The Israeli legislator refrains from intervening in fundamental rights such as freedom of expression, free trade, occupation, and liberty of contract in advertising. However, there are also few interventions to prevent phenomena that are dangerous or abusive, especially to groups needing protection. The Israeli courts do try to apply moral considerations in cases tried by them, but living up to moral responsibilities is different from complying with legal obligations. Advertisers in Israel have a(i) Treatise(r), consisting of ten ethical guidelines, which neither sums up advertising ethics in its entirety nor is legally binding. Sociological and psychological features of the culture need to be examined in order to spell out what truth and honesty in advertising actually mean in this society, and the manner in which these values are practised. Lacking sanctions in public law against misleading consumers or manipulation based on false facts, consumers must find remedy in civil actions which rely on moral and ethical rules.     

我国公共危机管理法制建设存在的问题与对策思考

2007年,我国人大常委会审议通过的《中华人民共和国公共危机事件应对法》,是新中国第一部应对各类公共危机事件的综合性法律,标志着我国规范应对各类公共危机事件共同行为的基本法律制度已经确立,但还存在着法规体系不健全、应急法制的实施环境有待进一步改善、应急管理的法制执行不到位等问题。我国应不断地修订和完善危机管理法律体系、营造良好的法制环境、加大职能部门执法监管力度,使危机管理工作逐渐进入了制度化、规范化和法制化的轨道。     

Individual, Collective and Social Responsibility of the Firm

The main concern of this paper is the moral responsibility of the firm, as well as of the individuals in a firm, to uphold environmental protection. Much of the business ethics literature defines corporate social responsibility in terms of stakeholder relationships, and the emphasis is frequently on collective as opposed to individual responsibility. This paper has three objectives. The first is to clarify the nature of moral responsibility, and the distinction between legal and moral responsibility. The second objective is to steer academicians and others towards a new vision of the firm. We argue that a firm is not just a singular legal entity but also a collectivity of morally responsible individuals who are liable for immoral acts of the firm. By expanding the boundary of responsibility of action from an intangible collectivity – the firm, to all the individuals within it, this vision moves beyond the typical emphasis on the firm as being the only moral agent responsible for corporate actions. The paper emphasizes not simply the responsibility of top echelon managers, but of every employee across ranks. The third goal of this paper is to examine the circumstances where application of moral responsibility becomes crucial, for instance, in the context of protection of the natural environment by a firm and its employees.     

The Decomposition of the Corporate Body: What Kant Cannot Contribute to Business Ethics

Kant is gaining popularity in business ethics because the categorical imperative rules out actions such as deceptive advertising and exploitative working conditions, both of which treat people merely as means to an end. However, those who apply Kant in this way often hold businesses themselves morally accountable, and this conception of collective responsibility contradicts the kind of moral agency that underlies Kant’s ethics. A business has neither inclinations nor the capacity to reason, so it lacks the conditions necessary for constraint by the moral law. Instead, corporate policies ought to be understood as analogous to legal constraints. They may encourage or discourage certain actions, but they cannot determine a person’s maxim – which for Kant is the focus of moral judgment. Because there is no collective intention apart from any intentions of the individual agents who act as members of the corporation, an organization itself has no moral obligations. This poses a dilemma: either apply the categorical imperative to the actions of particular businesspeople and surrender the notion of collective responsibility, or apply a different moral theory to the actions of businesses themselves. Given the diffusion of responsibility in a bureaucracy, the explanatory usefulness of collective responsibility may force business ethicists to abandon Kant’s moral philosophy.     

Online Price Discrimination and EU Data Privacy Law

Online shops could offer each website customer a different price. Such personalized pricing can lead to advanced forms of price discrimination based on individual characteristics of consumers, which may be provided, obtained, or assumed. An online shop can recognize customers, for instance through cookies, and categorize them as price-sensitive or price-insensitive. Subsequently, it can charge (presumed) price-insensitive people higher prices. This paper explores personalized pricing from a legal and an economic perspective. From an economic perspective, there are valid arguments in favour of price discrimination, but its effect on total consumer welfare is ambiguous. Irrespectively, many people regard personalized pricing as unfair or manipulative. The paper analyses how this dislike of personalized pricing may be linked to economic analysis and to other norms or values. Next, the paper examines whether European data protection law applies to personalized pricing. Data protection law applies if personal data are processed, and this paper argues that that is generally the case when prices are personalized. Data protection law requires companies to be transparent about the purpose of personal data processing, which implies that they must inform customers if they personalize prices. Subsequently, consumers have to give consent. If enforced, data protection law could thereby play a significant role in mitigating any adverse effects of personalized pricing. It could help to unearth how prevalent personalized pricing is and how people respond to transparency about it.     

The ethical significance of corporate law

Corporate legal scholarship has failed in fundamental ways to grasp the ethical significance of corporate law and policy. While the broader economic and social consequences of particular legal developments are routinely debated, too little reflection is given to how such developments affect the moral quality of individual lives within the corporate hierarchy. What is needed is a framework for illuminating the interaction between developments in corporate legal doctrine and the ethical choices of corporate managers. The ethical significance of corporate law derives from two key factors. First, the corporation as an organization mediates between individuals in the corporate hierarchy and their ethical responsibilities. Second, the organizational choices and decision-making structure of the corporation are to a significant degree the product of corporate law. Jeffrey Nesteruk is an Assistant Professor of Business Policy and Environment at Rider College. In addition to his law degree, he holds a master's degree in philosophy. Professor Nesteruk's interests include both business ethics and corporate law. He has published a number of articles and book reviews in various legal journals such as the Columbia Business Law Review, University of Cincinnati Law Review,and DePaul Law Review.He is currently coauthoring a book, Corporations in the Moral Community,to be published by Holt, Rinehart & Winston, Inc.     

The Principled Legal Firm: Insights into the Professional Ideals and Ethical Values of Partners and Lawyers

Understanding how the professional ideals and values of partners influence lawyers’ everyday life is a relatively unexplored area given the inherent difficulties of gaining access to lawyers. This case study sheds light on the professional ideals and ethical values of partners and lawyers in a mid-tier Sydney law firm. Semi-structured interviews with partners and lawyers/legal clerks reveal how partners’ professional ideals and ethical values play a pivotal role in: (1) upholding positive normative evaluations of lawyer/firm propriety (moral legitimacy), (2) stressing the importance of a balanced working life (cognitive legitimacy) and (3) satisfying younger lawyers’ needs for personal support, autonomy and responsibility (pragmatic legitimacy). The principled actions of partners are portrayed as the cornerstone of shaping a moral community in legal practise.     

Fair markets

The paper challenges a minimalist strategy in business ethics that maintains if it's legal, it's moral. In hard cases, judges decide legal issues by appealing to moral ideals. Investigation shows that the bedrock concept is fairness. Often judges define fairness in terms of non-coerciveness or equality of bargaining power. The prudent manager must look beyond the legal department to the ethical notion of fairness. Moreover, if the courts were to consistently appeal to non-coerciveness and equality of bargaining power, some practices now considered morally acceptable would be neither moral nor legal. Norman E. Bowie is Professor of Philosophy and Director of the Center for the Study of Values at the University of Delaware. He is the author of numerous articles on business ethics and social and political philosophy and of Business Ethics, Making Ethical Decisions (ed.), The Tradition of Philosophy (co-ed.), and Ethical Theory and Business (co-ed.).     

徽商诚信道德与我国商法借鉴

徽商诚信道德折射中国本土法律资源中的诚信因子，突破了传统研究认为商法层面上的诚信土壤来源于西方徽商商业道德中的诚信因子符合商法本质中私法性和“保障营利性”特点的需要、因此徽商商业道德中的诚信因子在我国商法体系中商法总则和分则的吸收、信用机制的建立、商事裁判的效力位阶排序中具有良好的借坚，从而推动我国商法的逐步完善。     

Moral Agency,Profits and the Firm: Economic Revisions to the Friedman Theorem

The paper reconstructs in economic terms Friedman’s theorem that the only social responsibility of firms is to increase their profits while staying within legal and ethical rules. A model of three levels of moral conduct is attributed to the firm: (1) self-interested engagement in the market process itself, which reflects according to classical and neoclassical economics an ethical ideal; (2) the obeying of the “rules of the game,” largely legal ones; and (3) the creation of ethical capital, which allows moral conduct to enter the market process beyond the rules of the game. Points (1) and (2) position the Friedman theorem in economic terms while point (3) develops an economic revision of the theorem, which was not seen by Friedman. Implications are spelled out for an instrumental stakeholder theory of the firm. Dr. Sigmund Wagner-Tsukamoto is researcher in business ethics at the School of Management of the University of Leicester, UK. He holds two doctorates, one in social studies from the University of Oxford, UK, and one in economic studies from the Catholic University of Eichstaett, Germany. He has widely published on green consumerism and institutional economic issues that concern organization theory and business ethics theory. His publications include the books Understanding Green Consumer Behaviour (Routledge, 1997 & 2003) and Human Nature and Organization Theory (Edward Elgar, 2003).     

刍议企业信用

市场经济是中国社会主义经济发展的必由之路,而企业的信用是市场经济的枢纽。随着社会主义市场经济的不断发展,诚信的作用越来越重要,而我国目前信用缺失现象却日益严重。对我国企业在市场经济条件下,信用缺失原因进行分析,从而提出加快建立信用法律体系,加强执法力度;严厉打击地方保护主义;加强道德教育,营造全社会信用意识;经营者树立诚信经营的伦理观,加强企业自身信用建设;加强企业信用管理,建设信用评估机构,提出企业信用建设的相应对策与建议。