信义义务:英美金融消费者保护的一个独特制度

目前对英美金融消费者保护法律的介绍,着重于条文和概念,对于背后广泛运用衡平法下信义义务的精神实质很少关注.已有的法与金融理论研究虽然指出了英美法系较之于大陆法系更有利于保护投资者,从而较好地促进了金融发展.但对于为何促进了金融发展缺乏学理分析.为此,本文指出其法律基础和作用途径是信义义务,用不完全合同理论和科斯定理推论三,对金融消费者保护中运用信义义务的合理性作了经济学原理分析,并对英美金融服务者与金融消费者的信义关系及其信义义务适用情形、与普通法不同的处理方式进行了阐述.这对于我们在移植英美金融监管法律时,加强对形式后面的精神实质的理解和运用具有重要意义.     

Insolvency law reform in Australia and Singapore: Directors' liability for insolvent trading and wrongful trading

This article compares reforms to directors' liability for insolvent trading in Singapore and in Australia. We analyse the law in these two countries because they are important Asia‐Pacific trading partners and their laws were originally largely the same—Singapore's law on insolvent trading reflected the law in Australia from the 1960s. However, the law in the two countries has now diverged substantially. The comparison of these two countries therefore represents an interesting case study in how countries differ in their approaches to balancing the competing interests evident in laws that impose personal liability on company directors for insolvent trading. Reform of the prohibition against insolvent trading was a focus of Australia's insolvency law reforms in 2017, which led to the introduction of a safe harbour for directors from liability. Singapore's omnibus insolvency law reforms of 2018–19 include amendments to update Singapore's fraudulent and insolvent trading provisions by introducing a concept of “wrongful trading.” The article finds that there are some areas of convergence between these two jurisdictions when it comes to debates about such provisions but concludes that the different contemporary legislative histories in Australia and Singapore have affected their approaches to reform. Reformers in both jurisdictions have attempted to find an appropriate balance between protecting creditors, discouraging director misconduct, and encouraging entrepreneurship and innovation; however, this comparison suggests that the weight that reformers place on creditor protection compared with the concern that excessive personal liability can make directors unduly risk‐averse is influenced by their existing legislative framework and experience of those laws. Although Australia has shifted away from a strict focus on creditor protection, to give directors more opportunities to engage in restructuring, Singapore's amendments may provide a more creditor‐friendly regime.     

Investor Protection and Corporate Governance: Evidence from Worldwide CEO Turnover

Recent research asserts that an essential feature of good corporate governance is strong investor protection, where investor protection is defined as the extent of the laws that protect investors' rights and the strength of the legal institutions that facilitate law enforcement. The purpose of this study is to test this assertion by investigating whether these measures of investor protection are associated with an important role of good corporate governance: identifying and terminating poorly performing CEOs. Our tests indicate that strong law enforcement institutions significantly improve the association between CEO turnover and poor performance, whereas extensive investor protection laws do not. In addition, we find that in countries with strong law enforcement, CEO turnover is more likely to be associated with poor stock returns when stock prices are more informative. Finding that strong law enforcement institutions are associated with improved CEO turnover‐performance sensitivity is consistent with good corporate governance requiring law enforcement institutions capable of protecting shareholders' property rights (i.e., protecting shareholders from expropriation by insiders). Finding that investor  protection laws are not associated with improved CEO turnover‐performance sensitivity is open to several explanations. For example, investor protection laws may not be as important as strong law enforcement in fostering good governance, the set of laws we examine may not be the set that are most important in promoting good governance, or measurement error in our surrogate for extensive investor protection laws may reduce the power of our test of this variable.     

CP3's Standardized Approach for Credit Risk and Current Capital Requirements

This paper reports estimated risk-weighted assets at 27 New York banks after applying the provisions of the Standardized Approach, both singly and in combination. The provisions that lead to estimated decreases in risk-weighted assets had greater impact than provisions that lead to estimated increases. This finding implies that using Standardized Approach elements to make capital requirements more risk-sensitive will lead to lower levels of required capital, unless regulators also impose a capital charge for operational risk. The effect of the different provisions varied across the 27 institutions, but the results, on average, are consistent with those reported in the third Quantitative Impact Study.     

How credible is a too-big-to-fail policy? International evidence from market discipline

This paper analyzes in an international sample of banks from 104 countries if the sensitivity of the cost of deposits to bank risk varies across banks depending on their systemic and absolute size. We analyze a period before the 2007 financial crisis and control for endogeneity of bank size, intervention policies in past banking crises, and soundness of countries’ public finances. Our results are consistent with the predominance of the too-big-to-fail hypothesis, although this effect is stronger in countries that did not impose losses on depositors in past banking crises and in countries with sounder public finances.     

A theory of relativity in restructuring developed with the Coase Theorem

This article addresses a key topic in restructuring law, namely the alternative legislative rules for setting priorities for payments and rights among stakeholders in a statutory restructuring programme. The EU Member States have now implemented the Restructuring Directive (2019/1023), which gives two options for the priority rules and the outcomes of the new laws seem to vary significantly. As this legislation is important also for the efficiency of the capital markets, it is good to investigate the potential impacts the new legislative structures may bring for the process. In the article the author argues, by using the Coase Theorem, a leading theory in law and economics, that wider powers for a court to consider the interests of all parties in restructuring could be a preferable legislative solution to restructuring law. It would protect generally the creation of a restructuring surplus, as an individual class would be unable to use its rights as a tool for gaining further benefits. Relativity would stimulate the bargaining of property rights in the process and would follow the Coase Theorem, according to which bargaining between individuals or groups related to property rights will lead to an optimal and efficient outcome.     

Shareholder litigation rights and capital structure decisions

We exploit the staggered adoption of the universal demand (UD) laws across U.S. states, which impedes shareholder rights to initiate derivative lawsuits, as a quasi-natural experiment to examine the relation between shareholder litigation rights and firm capital structures. We find that weaker shareholder litigation rights due to the UD laws adoption lead to higher financial leverage, which enhances firm value. Furthermore, the positive relation between the UD laws adoption and financial leverage is more pronounced for firms exposed to higher shareholder litigation risk ex ante or financially constrained firms. Our evidence is consistent with lower shareholder litigation threats motivating firms to increase financial leverage.     

AVB und Beratungspflichten – Markt – und Produktdisposition

Although insurers over services, they are no advisers/consultants. Nevertheless, the jurisdiction has already established an pre-contractual insurers duty to l advise insureds under the validity of the old VVG according to general civil law rules. Article 6 VVG standardizes such duties for the first time and aims to guarantee customers proper advice/consultancy particularly before the contract ends to prevent lapses in coverage. Therewith some considerable questions referring to concurrent laws concerning the law of the general terms and conditions, which aim to guarantee reliable and transparent information for customers in a quite similar way, arise. The author discusses this problem of concurrent laws and develops criteria which show which law is applicable on what occasion. As a result, a possibly contradictory pre-contractual double review is avoided.     

Competition among Financial Intermediaries When Diversification Matters

Many models predict that the diversification and efficiency of financial intermediaries (“banks”) increases with their size, so that a relatively unrestricted banking sector will settle into an equilibrium with several large, well-diversified, and competitive banks. However, this prediction is at odds with the actual pattern of unrestricted banking sector evolution in many countries. I develop a model that motivates this actual pattern and examine the model's implications for regulatory policy. I show that an investor's return from a bank depends on the number of investors using that bank; this adoption externality makes investor beliefs about other investors' actions critical for bank competition. In a young banking system with free entry, coordination problems lead to excessive fragmentation, and debt overhang makes it difficult for small banks to capture additional market share. As the system matures, many banks fail, and the survivors become the focus of investor beliefs; these incumbents gain a strong advantage over entrants, facilitating collusion. Entry restrictions reduce fragmentation but aid collusion, while government insurance for investors reduces incumbency advantage and collusion but may cause excessive fragmentation. Thus, regulators may wish to impose temporary entry restrictions, along with partial insurance. These results are consistent with historical evidence from several countries.Journal of Economic LiteratureClassification Numbers: G21, G22, L13.     

Regulation of Subprime Mortgage Products: An Analysis of North Carolina's Predatory Lending Law

This paper estimates the effect of North Carolina's high-cost mortgage law on the subprime mortgage market in that state. The results indicate that creditors sharply restricted lending to higher risk consumers in North Carolina following passage of the law. Creditors did not restrict lending in neighboring states or to lower risk consumers in North Carolina. These results suggest that the restriction in North Carolina was due to rationing in response to higher costs imposed by the law. The findings of this study are of importance beyond North Carolina. Other states and municipalities have proposed or passed similar or more restrictive laws. These laws risk taking back some of the gains in credit availability that lower income and higher risk consumers gained in the 1990s.     

Auditors' Duty of Care to Third Parties: A Comment on Judicial Reasoning Underlying US Cases

Gwilliam (1987) examined UK and Commonwealth legal cases regarding auditors' duty of care to third parties. This article adds an examination of judicial reasoning in precedent-setting US cases deciding duty to third parties. The UK, Commonwealth and US cases indicate that, while pressures to expand duty are not consistent across legal jurisdictions, they do span international jurisdictions and are similarly based on protecting public interests by providing remedy at law rather than protecting the profession's capacity to serve the public.     

Die vorvertragliche Anzeigepflicht: Empfehlungen für ein europäisches Versicherungsvertragsrecht

In all European legal systems, the pre-contractual duty of disclosure is the most fundamental duty of the insured. Therefore, it is also the focal point of the debate about the harmonization of insurance contract law in Europe. As this discussion has recently gained momentum, this contribution provides a comparative overview of the rules regulating the duty of disclosure in different European countries and submits recommendations for its design in a European insurance contract law. More specifically, it is recommended that the insured should be required to disclose any fact material to the risk, that is either known to him or that he can be assumed to know. In case of breach, the insurer should either be entitled to repudiate the contract ab initio, to cancel the contract for the future or to claim damages depending on whether and to what degree the insured is at fault and depending on whether there is a causal connection between the non-disclosed fact and the formation of the contract or the occurrence of the insured event.     

Equity Risk Incentives and Corporate Tax Aggressiveness

This study examines equity risk incentives as one determinant of corporate tax aggressiveness. Prior research finds that equity risk incentives motivate managers to make risky investment and financing decisions, since risky activities increase stock return volatility and the value of stock option portfolios. Aggressive tax strategies involve significant uncertainty and can impose costs on both firms and managers. As a result, managers must be incentivized to engage in risky tax avoidance that is expected to generate net benefits for the firm and its shareholders. We predict that equity risk incentives motivate managers to undertake risky tax strategies. Consistent with this prediction, we find that larger equity risk incentives are associated with greater tax risk and the magnitude of this effect is economically significant. Our results are robust across four measures of tax risk, but do not vary across several proxies for strength of corporate governance. We conclude that equity risk incentives are a significant determinant of corporate tax aggressiveness.     

理性的思考:认真对待税之法性

税之法性由税的基点所决定,具体包括:税法应该实现的基本目标为正义和效率;税法所要实现正义和效率的手段和方法是以税收法定为基础和原则,包括多种路径在内的一种智识和实践。税法作为平衡、协调经济利益之法,实用性是其内核;正义、效率是其基本目标;法定性是其实现基本目标的基础和决定性因素;纳税人诉讼、纳税人用税监督权是实现其基本目标的方向;税收司法的独立最终决定了税收司法正义和税法效率的实现。     

Productivity and efficiency analysis of Shinkin banks: Evidence from bootstrap and Bayesian approaches

This paper analyzes the productivity and efficiency of Shinkin banks and the various prefectures in Japan, over the period from 2000 to 2006. We obtain estimates of efficiency growth and productivity growth, using the bootstrapped Malmquist index, and estimates of efficiency using the Bayesian distance frontier approach. We confirm that the efficiency growth and productivity growth of Shinkin banks did not improve significantly over the period of this study. In addition, we show that the efficiency of Shinkin banks is homogenous, with little variation across the banks analyzed. Methodologically, we also prove that a failure to impose theoretical regularity on the distance function could lead to false conclusions about the average efficiency or efficiency ranking of Shinkin banks. The study also includes an analysis of the correlates of productivity and efficiency growth, and provides efficiency and productivity estimates of the prefectures in which the banks are located.     

英国近代自由主义的济贫法批判

本文在介绍济贫法与工业革命历程的基础上,阐述了英国四位自由主义思想家对于济贫法的批判思想。亚当.斯密认为济贫法阻碍了劳动力和资本的自由流动;在马尔萨斯看来,人为的济贫法干扰了大自然的人口抑制法则;斯宾塞则指出,济贫法不仅扰乱了优胜劣汰的进化法则,而且扼杀了人类的美好天性;霍布豪斯赞同社会救助,但认为传统的济贫法不足以促进个人自立与发展。最后,笔者提出,自由主义济贫法批判思想具有体现并满足近代资产阶级需要的双重功效,但是这种批判不足以掩盖济贫法制度的正向功能。     

Konvergenz des Versicherungsvertragsrechts in Europa?

Insurance law has been embedded in an international context ever since. This is true not only for marine insurance and reinsurance but also for manifold other branches of the insurance sector. Against this background, the European Single Market and the intended legal harmonisation and integration are particularly important for insurance contract law. The future development of insurance law should give special attention to the question if and to what extent there is a convergence in the respective member state insurance contract laws. At the outset, the comparative analysis shows that French and German insurance contract law is governed by a “risk bearing community model” (Gefahrengemeinschaftsmodell) and that English law can be characterized as an “individual contract model” (Individualvertragsmodell). Convergence is not only found in European directives but also in reforms and reform proposals in member state law.     

Value maximization and the information content of corporate investment with respect to earnings

In this paper we study the dynamic nature of the relationship between earnings and investment. If managers act as wealth maximizers, we would expect that new investments should lead to increased earnings. However, past research has found that investment is not causally prior to earnings. Using recent developments in time-series econometrics, we show that the dynamic nature of the relationship between earnings and investment exhibits bi-directional causality. Our results are consistent with managers investing in positive NPV projects, but managers appear to face financing constraints because investment decisions are driven by the availability of internally generated earnings.     

Labor and Corporate Governance: International Evidence from Restructuring Decisions

Our results highlight the importance of interaction among management, labor, and investors in shaping corporate governance. We find that strong union laws protect not only workers but also underperforming managers. Weak investor protection combined with strong union laws are conducive to worker–management alliances, wherein poorly performing firms sell assets to prevent large-scale layoffs, garnering worker support to retain management. Asset sales in weak investor protection countries lead to further deteriorating performance, whereas in strong investor protection countries they improve performance and lead to more layoffs. Strong union laws are less effective in preventing layoffs when financial leverage is high.     

An empirical analysis of property appraisal and mortgage redlining

The recent literature advances a hypothesis that addresses the possibility of mortgage redlining caused by a dynamic information externality in property appraisals and mortgage lending. In particular, Lang and Nakamura (1993) hypothesize that because property appraisals depend on past transactions, appraisals in neighborhoods where transactions were infrequent tend to be less precise. The greater uncertainty about house valuation in such neighborhoods can lead mortgage lenders to impose stringent requirements on borrowers. Lang and Nakamura's article, like most economic analysis of property appraisals, is theoretical. Using a sample of mortgages purchased by Fannie Mae, we present preliminary research results that cast doubt on appraisal behavioral rules such as weighted averages or backward-looking expectations on which Lang and Nakamura and other theoretical studies are based. Instead, our results refocus attention on the moral hazard issues of appraisal. We find that in more than 80 percent of the cases, the appraisal is between 0 and 5 percent above the transaction purchase price, in only 5 percent of the cases is the appraisal lower, and in 30 percent of the cases, the appraisal and transaction prices are identical. It would take a strong statistical model to generate such occurrences. Our resutls also indicate that appraisal outcomes are used as a risk factor with different weights for loans with different characteristics (loan-to-value ratios and house prices). The results suggest that more empirical investigation of appraisal practices be conducted to verify the validity of conventional wisdom embedded in theoretical studies, and we offer an econometric framework toward this end.