美国联邦预算管理法律体系演变与启示

美国联邦预算过程很大程度上是立法部门和行政部门争取预算控制权的斗争过程,立法部门和行政部门均力图通过规则和程序的改变来获得对预算的控制权。经过200多年联邦预算的发展演变,随着联邦预算法律体系的完善,美国形成了立法、行政系列相互独立、分工明确、相互制衡的预算资金分配机制,预算权成为立法部门制约政府行政权力扩张的重要工具。完善中国的预算管理法律体系,形成预算资金分配的相互制约机制,强化对政府预算权的控制,是当前中国构建法治化公共财政亟待解决的问题。     

萨班斯法案与我国上市公司治理结构研究

为了保护投资者的利益,美国于2002年颁布了萨班斯法案。该法案要求加强对在美国上市公司的监管,完善上市公司的内部控制机制,但其高昂的实施成本也引起了人们对该法案作用的争议。尽管如此,萨班斯法案对我国上市公司治理方面仍具有借鉴意义。本文通过对萨班斯法案的分析,探讨我国证券市场应如何借鉴该法案来完善我国上市公司内部治理机制和外部治理环境,从而实现我国证券市场快速、健康而有序的发展,以保护国内广大投资者的利益。     

Consumer Bankruptcy: A Right or a Privilege? The Role of the Courts in Establishing Moral Standards of Economic Conduct

The Norwegian Consumer Bankruptcy Act was passed 17 July 1992 to give persons with "serious debt problems (. . .) the possibility to gain control over their economy." The Act contains provisions for negotiations between the debtor and the creditors, for court rulings on repayment plans, and for a discharge of the debts not covered by the plan. The origin of the Act was a social welfare approach to the problem of overindebtedness. However, the Act embodies an inherent contradiction in that it also includes moral elements in order to prevent it from exerting a negative influence on the perceived obligation to pay one's debts. This contradiction has given the courts a wide scope of discretion in the application of the Act. As a result, cases are treated differently in different jurisdictions. Some judges put more emphasis on moral evaluations than others. This situation also gives room for strategic action from creditor groups who typically are repeat players in cases of consumer bankruptcy. In this way the more objective, social welfare approach of the Act is undermined.     

《合同法》第308条在司法实践中的适用风险

本文从国别立法比较的角度解读《合同法》第308条规定,剖析该条规定在海运实践中因与《海商法》并存的法律选择、托运人作为唯一的权利主体以及变更解除合同行为属性等问题可能产生的法律预测功能丧失或者运作不正常导致的司法风险,提出完善立法、补充司法解释等观点,希望有益于《合同法》第308条适用风险的降低和化解。     

国际金融危机与“购买美国货”条款

美国爆发的金融危机给全球金融和经济贸易带来极大的影响,为此,各国纷纷出台应对当前金融危机、刺激经济复苏的政策和措施,美国更是如此。2009年2月17日,美国总统奥巴马签署了《2009年美国复兴与再投资法》,①使之正式成为法律生效,奥巴马"新政"由此也正式启航。然而,美国应对金融危机、刺激经济复苏方案出台前后,不仅在美国国内引起激烈争论,而且在全球范围内也引起轩然大波,矛盾的焦点主要集中在该法的"购买美国货"条款上。带有明显贸易保护主义的"购买美国货"条款出台,使世界上贸易保护主义进一步抬头和泛滥,各国在应对金融和经济危机的同时,不得不与贸易保护主义作斗争。     

Regulating Unfair Trade Practices: an Analysis of the Past and Present Indian Legislative Models

The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP Act) which for the first time incorporated detailed provisions as to unfair trade practices (UTPs) in India has now been repealed and succeeded by the Consumer Protection Act, 1986 which has included the same substantive definition of UTPs. This article analyses the law as to UTPs under the repealed MRTP Act including the cases decided thereunder and compares it with the structure of the Consumer Protection Act with the objective of evaluating whether the present Consumer Dispute Redressal Agencies under the Consumer Protection Act have adequate substantive provisions and effective procedural competence to ward off UTPs. Our analysis of legislative provisions and decided cases shows that the present system of protection against UTPs under the Consumer Protection Act is blighted by a strict and restrictive definition of consumer; lack of in-house enquiry and investigation system, incompetency of traders and trade associations to pursue cases, and lack of inherent power of the Consumer Dispute Redressal Agencies to suo motu take up matters. The article uses analytical and statistical methods to quantify, in terms of actual effect, these drawbacks which significantly hamper the present system and suggests various means to improve the functioning of the system so as to effectively deal with UTPs.     

Public policy and the establishment of large stores in Belgium

Belgian public policy towards retailing has been viewed as being politically motivated and frustrating the ambitions of large retailers by being biased towards independent retailers. This paper analyses the impact of the Business Premises Act on the development of supermarkets and hypermarkets. It concludes that the Act has had an impact although this may have been an unintended one in that retailers have changed behaviour to surmount the Act.     

Regulating Marketing Communications on the Internet

Abstract

Cybersquatters register internet domain names matching trademarks owned by other individuals or companies, intending to coerce payments before relinquishing that domain name to the rightful trademark owner. As online commerce expanded, so too has trademark infringement complaints concerning internet domain names. Congress passed two acts in recent years to deal with the controversy, the Federal Trademark Dilution Act of 1995, also known as Section 43(c) of the Lanham Trademark Act, and the more recent Anticybersquatting Consumer Protection Act of 1999, also known as Section 43(d) of the Lanham Trademark Act. Causes for action, defenses, and remedies are discussed for both. This article analyzes their impact.     

Developments in Consumer Protection in India

This paper surveys the major developments in the field of consumer protection in India since 1984, when the statutory provisions for regulating unfair trade practices were incorporated for the first time.Among the developments described in the paper is the strengthening of provisions for consumer protection through amendments to the Act regulating restrictive and monopolistic trade practices (the MTRP Act). Public-sector undertakings and co-operative societies have been brought within the purview of the Act, and consumers have obtained the right to participate in inquiry proceedings before the MRTP Commission.Consumers and their associations have been given the right to seek redress of grievances arising out of the violation of certain pieces of legislation, including the Drugs and Cosmetics Act. The Consumer Protection Act, 1986, was enacted in order to provide speedy and inexpensive redress of consumers' grievances. Redress can now be sought before any consumer court also for negligence or deficiency in medical services.The Bureau of Indian Standards Act, 1986, has strengthened the measures for the standardisation and quality control of manufactured goods.A Consumer Welfare Fund has been set up to provide financial assistance to voluntary consumer organisations and for the general development of consumer movement in the country. A spurt in voluntary consumer organisations in different parts of the country can also be observed.Other developments include the establishment of a separate Department of Consumer Affairs in the Union Government and the setting up of a Consumer Product Testing Laboratory.     

萨班斯法案的经济后果分析

二十一世纪初美国爆发了一系列上市公司的财务丑闻,美国随后通过了萨班斯法案,以加强对上市公司的监管。萨班斯法案对美国乃至世界资本市场造成了一系列深远的影响,本文从多个层面分析萨班斯法案的经济后果以及我国内部控制现状,提出完善我国上市公司内部控制规范实施的政策建议。     

The US trade reform act of 1974

The 1974 Trade Act gives the US President extensive authority to engage in multilateral trade negotiations in the framework of GATT. The following article offers a survey of the provisions of the Act and discusses its possible impact on international trade relations.     

美国救市法案中的公允价值会计谬误

2008金融危机使公允价值备受关注。分析美国救市法案的公允价值议题和金融机构对公允价值的责难,发现前者本欲减轻金融机构某些资产按公允价值计量所产生的压力,却将矛头指向仅提供计量和披露方法的SFAS157,后者则将确认巨额次贷减值损失的原因归咎于公允价值会计。论文认为这些都是风马牛不相及的问题,存在明显的谬误。     

The effect of voluntary and mandatory corporate social responsibility on earnings management: Evidence from India and the 2% rule

Utilizing the natural experiment presented by India's Companies Act of 2013, this paper investigates the relationship between corporate social responsibility (CSR) engagement and earnings management. India's Act includes provisions designed to improve governance and financial audits, as well as a unique mandate requiring firms that satisfy size or profitability criteria to spend a minimum of 2% of reported income on CSR initiatives. We examine the earnings management behavior of firms that voluntarily reported CSR expenditures prior to the Act's implementation as well as those firms that began to report CSR spending as a consequence of the mandate. Results indicate that firms which voluntarily reported CSR expenditures before the Act also engaged in more earnings management than other firms, consistent with CSR being used manipulatively in the pre-Act period. Once the Act was in effect, evidence indicates that on average firms engaged in less earnings management. However, the results suggest the CSR mandate did not have a significant marginal impact on earnings manipulations, implying that the observed decrease in earnings management in the post-Act period was primarily due to other provisions of the Act, such as those related to corporate governance.     

The Wages Act 1986: Some Reflections with Particular Reference to the Licensed Residential Establishment and Licensed Restaurant Wages Council

The Wages Act 1986 (the Act) has been the object of scant academic analysis since its implementation some three years ago and now merits a closer examination of its past and future role. This article examines the first 75 years of legal minimum wages in Britain; systematically analyses the Act and its implications from two perspectives - the wording of the legislation itself and in the context of developments that have occurred in the licensed hotel and restaurant sector of the catering industry since 1986 - and concludes having identified four key themes with public policy significance that merit further research.     

The Health and Safety at Work Act and Retail Managements

A decade ago managemertts in Great Britain were confronted by new workplace health and safety law. They had in many cases experienced the need to comply with statutory requirements before but the 1974 Act brought unique reportsibiliries which were viewed wit11 trepidation. This article focuses upon the influence which the Act has exerted on retail stores' management. It examines the health and safety systems which have evolved in the stores and considers the degree to which they have met the intention of the Act. In addition, the arricle reveals why theories of employee participation can be difficult to translate into practice.     

Price-Anderson act declared unconstitutional: The decision and its effects on nuclear power

In March 1977, the $560 million limit on liability in the Price-Anderson Act was declared unconstitutional. The Price-Anderson Act sets forth a combination private-public insurance and compensation system for handling risks associated with commercial nuclear operations. The limit was found to violate the due process and equal protection provisions of the Fifth Amendment of the U.S. Constitution. This paper examines the salient points of the decision which include: (a) the effects of nuclear plant operations on the plaintiffs; (b) the dependence of nuclear power development on the Price-Anderson Act; (c) the plaintiff's right to bring suit; and (d) the rationale for declaring the Act unconstitutional. The potential effects include the possibility that many utilities and suppliers of nuclear plant components will terminate their nuclear business, the availability of capital funds for nuclear plants will be reduced, and that cost of capital will be increased to reflect the greater risk of nuclear development.     

美国“337”条款与我国企业对策研究

对美国"337"条款缺乏了解与对策已成为我国企业在对美贸易中遭受损失的重要原因之一,本文在对美国"337"条款进行分析的基础上对我国企业提出相应的对策建议。     

Tighter control over foreign capital

Foreign investors in Malaysia were greatly disquieted when the Petroleum Development (Amendment) Act, 1975, and the Industrial Coordination Act were passed by the Malaysian Parllament. Both these enactments and the re-formulated Standard Conditions for Foreign Investments are Indicative of the Malaysian Government’s desire for tighter control over the national resources and over the foreign enterprises.     

Credit Union Legislative Frameworks in the United States of America and the United Kingdom – A Flexible Friend or a Step Towards the Dark Side?

This article questions the findings of several studies which have concluded that the Credit Unions Act 1979 was a factor limiting the growth of credit unions in the United Kingdom (UK). The author’s conclusions are based upon an analysis of the amendments to the Credit Unions Act 1979 introduced by the Financial Services Authority (FSA). As a result, the 1979 Act now reciprocates the controversial, yet flexible United States (US) legislative framework. In particular, the article examines the interpretation of the common bond, the provision of financial services and the regulation of credit unions. The article concludes that these three statutory provisions have assisted the growth of credit unions in both countries and not limited their development. However, the growth of credit unions has come, at the expense of their unique status and philosophy. It has made US credit unions, in particular, indistinguishable from banks. This is a problem which may affect credit unions in the UK. The article concludes that the Credit Unions Act 1979 did not limit their development, but acted as a galvanising factor for credit union expansion.     

试论我国行业管理法的地位与体系

行业管理法是经济法体系中的一项法律，但是从宏观和微观的分类上行业管理法既不属于宏观经济调控法，也不属于微观的市场规制法，从其功能上来说行业管理法属于调整中观管理的经济法，行业管理法体系包含行业管理基本法、行业管理部门规章以及行业协会的自治规范等内容，具有指导思想和制度规范的立法，行业管理法对于促进行业领域的正常运行具有重要的意义。行业管理法与产业政策法规具有密切的关系，两者之间相辅相成，在国家的产业发展中共同发挥着指引和规范作用，研究行业管理法的地位和体系离不开产业政策法的分析介绍。笔者在本文中对行业管理法的地位和重要作用进行了分析，对行业管理法的体系内容也进行了详细的阐述，旨在通过本文的研究让更多人的认识到行业管理法，从而促进行业管理法作用的有效发挥。