论有限责任的实现及其法律适用界限

有限责任制度适用于公司、商业信托、合伙企业等各种商业组织形态.在这些企业中,有限责任通过构建商业组织和资产分割得到实现.组织化的重要功能在于通过建立公司或商业信托构建法律实体、促成资产分割并形成独立公司财产或独立信托财产从而实现商业组织所有人的有限责任.有限责任削弱了对债权人利益的保护,容易造成利益不均衡.在有限责任制度被滥用的情况下,应适用法人人格否认、实质合并规则等制度性措施予以纠正.同时,应谨慎对待有限责任在专业服务领域的适用,强调专家严格责任.     

The Dependency of the Banks' Assets and Liabilities: Evidence from Germany

Two decades of developments in risk‐transfer instruments may have fundamentally changed the extent to which banks practice on‐balance sheet term and liquidity transformation. These changes should be deliberated in on‐balance sheet asset‐liability dependencies. By using correlation analyses, we investigate asset‐liability dependency for all three sectors of German universal banks from 1994 to 2007 and find that it declined over our sample period. We also investigate whether asset‐liability dependency varies systematically with a bank's affinity for using risk‐transfer instruments, regulatory capital, and profitability and document several differences between the three sectors of German universal banks.     

Piercing the veneer of the trust in the South African Trust Law: Liability of trustees of a business trust for fraudulent trading

The trust, whichever form it is moulded in, is a useful instrument for estate planning. However, many family businesses nowadays take the form of a business trust without any change in the circumstances surrounding it. This submits the trust to diatribe and suspicion because the protection the trust offers is often exploited. In Land and Agricultural Bank of South Africa v Parker and Others 2005 (2) SA 77 (SCA) it was obiter the court's view that it might be necessary to extend well-established company law principles also to trusts. The court referred to the Turquand principle and the principle of “piercing the corporate veil”. The motivation is that assets allegedly vesting in the trustees of a trust, in fact belong to one or more of the trustees personally. This view may have obvious and important implications in case of the sequestration of the trustee's estate. It implies that the assets concerned may be used in satisfaction of the trustee's debts because “in fact it belongs to the trustee”. However, it may also be used in satisfaction of debts “to the repayment of which the trustees purported to bind the trust”. Thus, if the trust's estate is sequestrated, the assets may be used in satisfaction of the trust's debts. If the personal estate of the trustee is sequestrated, these assets may be utilized in satisfaction of the trustee's personal debts. Consequently it is relevant to ask the question whether the trustee's personal estate (irrespective of sequestration) would be liable for restitution in favour of the beneficiaries for these actions in breach of trust in competition with the creditors of the trustee. Copyright © 2008 John Wiley & Sons, Ltd.     

Claims against negligent or fraudulent directors: proposed amendments to South African legislation

Numerous jurisdictions provide for statutory civil liability of directors should they make themselves guilty of managing the business of a company in a reckless, wrongful or fraudulent manner or engage in insolvent trading. Such provisions can play an important role in protecting the interests of corporate creditors, provided that they are properly formulated. This contribution attempts to determine whether the interests of corporate creditors are adequately protected in terms of such provisions. In South Africa, directors' civil and criminal liability for reckless or fraudulent trading is currently provided for in terms of section 424 of the South African Companies Act. Civil liability of those engaged in knowingly taking part in managing the business of the company fraudulently or recklessly is provided for in terms of subsection (1). However, an analysis of case law on the interpretation of section 424(1) reveals that there are numerous uncertainties regarding the application of this provision. Similar provisions in other jurisdictions also display a number of shortcomings. South African company law has just undergone an extensive review, however, and a Draft Companies Bill of 5 February 2007 was recently published for public comment. The liability of directors for reckless or fraudulent trading is provided for in terms of the proposed section 93(2)(b) of the Draft Companies Bill. A comparison between section 424(1) and section 93(2)(b) indicates that some of the uncertainties that exist in terms of section 424(1) may be resolved by the new provision. Unfortunately, the proposed section 93(2)(b) raises some of its own questions and would furthermore seem to offer more limited protection than section 424(1) in certain respects. This unfortunate occurrence will detract from the protection that provisions such as these could afford to the interests of corporate creditors and it is submitted that such provisions should be drafted with great care. Copyright © 2007 John Wiley & Sons, Ltd.     

Accounting measures of unfunded pension liabilities and the expected present value of future pension cash flows

The associations between three alternative measures of the unfunded pension obligation discussed in the accounting literature and a measure that reflects the present value of expected cash flows (economic liability) are examined in this study using simulated data. The sensitivity of the correlations to funding methods, growth rates of the plan population, interest rates, plan initiation dates, and extent of sweetening are also studied. It is shown that all the accounting measures of the pension obligation are highly correlated with the total economic liability when funding is excluded, but the correlations decrease significantly when the net (unfunded) liability is examined. Furthermore, it is shown analytically that one cannot predict ex ante which measure of the unfunded liability will be most highly correlated with the economic liability. The implication for accounting standard-setting bodies is that both the pension plan assets and pension obligations should be disclosed to facilitate users in making predictions about changes in the economic liability. A recent official pronouncement, SFAS 87, provides for such disclosure in most circumstances.     

论机动车第三者责任保险中“第三者”的界定

先根据合同相对性原理对机动车第三者责任保险中的“第三者”作出一般性解释,然后介绍我国机动车第三者责任保险对“第三者”外延的界定,再对相关界定作进一步的分析和评价,认为根据我国当前的相关立法环境可以将机动车第三者责任保险的被保险人调整为车辆实际使用人;被保险人不应该是机动车第三者责任保险中的“第三者”;从事驾驶工作的雇用...     

Statement of the Financial Economists Roundtable on the International Competitiveness of U.S. Capital Markets

The Committee on Capital Markets Regulation issued an Interim Report (known as the “Paulson Report”) near the end of 2006 that concluded that the U.S. “is losing its leading competitive position as compared to stock markets and financial centers abroad.” This report was quickly followed by a study, which reached similar conclusions, that was commissioned by New York Mayor Michael Bloomberg and Senator Charles Schumer and prepared by McKinsey & Co. At its July 2007 annual meeting, the Financial Economists Roundtable (FER) — a group of senior financial economists at universities and other organizations recognized as having made significant contributions to the finance literature—discussed the issues raised by the Report and decided to publish its own report. The report makes the following four policy recommendations:

• 1 Securities class action suits —Abolish enterprise liability under rule 10b‐5 in situations arising out of security purchases and sales in the secondary trading market among outside shareholders, while retaining managerial and firm liability where the company itself or its insiders (officers and directors) transact to their own benefit. Imposing massive liability on a company that is not a party to the securities transactions and does not benefit from the fraud does not serve a deterrence function since it is the continuing shareholders of the corporation who bear the burden of what the company must pay if found guilty, either directly or indirectly through insurance premiums.
• 2 Shareholder rights—Require all corporations to obtain shareholder approval to adopt a poison pill, regardless of whether a company has a staggered board. This requirement would conform to the broad principle that the board of any company should not be able to deny its shareholders the opportunity to decide on the merits of a takeover bid, and it would help restore the market for corporate control as an effective disciplinary mechanism for poorly performing boards and managers.
• 3 Compliance costs associated with SOX §404—Adopt a statutory amendment that makes it optional for a company to adopt the §404 procedures for a management assessment and auditor attestation of the effectiveness of its internal controls, with the requirement that if the company chooses not to comply it must explain why in its financial statements. Thus, in effect, the FER effectively recommends that the market be allowed to determine the value of §404 compliance. If a company chooses not to comply, the market will assess its explanation for non‐compliance and will value the company accordingly.
• 4 Maintaining open markets—Allow both foreign and U.S. firms to choose to report in conformity with either IFRS or U.S. GAAP. The FER recognizes both IFRS and U.S. GAAP as high‐quality accounting standards that provide reasonable foundations for financial reporting for investors. Allowing both foreign and U.S. firms to adopt whichever of these standards they believe to be the most cost‐effective provides an opportunity for the market and investors themselves to sort out which reporting standard best serves their interests.

     

Managing risk through the veil of ignorance

Background. We view overconfidence within risk management as a problem likely to manifest within philosophical preferences for anticipationism over resilienism, and in assumptions that risks are objectively real external powers or potentialities rather than subjective knowledge propositions. Methods. We argue that the realist tradition within Italian social theory, first crystallised by Niccolò Machiavelli and later elaborated by the sociologist Vilfredo Pareto, offers valuable lessons for corporate risk management praxis by demanding that we map out the complex relations between the risk subjectivities of risk managers, and their objective risk environments, from a standpoint of psychological and sociological realism which stresses the risk ignorance of practitioners. We caution that risk management efforts to improve risk subjectivities to achieve perfect veridicality to objective risk environments might often amount to a wishful bildungsroman of epistemological growth, reflecting the common aspirations of risk managers to demonstrate professional competence. We suggest that the profession should control this overconfidence problem by stressing the corrigibility of risk subjectivities with reference to sociological understandings that reflect on the widespread risk ignorance that can persist and even intensify where risk management effort is made. Results. Following the macrosociological framework sketched by Pareto, we show how two common ‘modes of uncertainty’ can be scrutinised for their adaptive fitness to two common types of risk environment. Conclusions. It can be helpful to think sociologically of organisations as engaging with some highly significant strategic risks blindly through a veil of ignorance.     

An Analysis of Potential Legal Liability Incurred Through Audit Expert Systems

The introduction of expert systems technology into the audit environment has opened a new avenue of auditor legal liability. This paper examines the potential impact expert systems will have on auditor liability. The presentation of this new avenue of auditors' legal liability explores both the potential for litigation under failure of auditor/expert system collaboration to yield prudent decisions and the failure to use an available expert system. The risks evolving from failure to use an available expert system include the possibility that the system could be used against the auditor in the courtroom. While case law will ultimately determine the bounds of this liability, this paper acquaints the reader with the important legal issues involved and the varied outcomes that could emerge. It should also be noted that while the specific example presented in this paper relates to the audit profession, the legal concepts are of equivalent concern to other professions enduring broad implementation of expert systems.     

Developing Dividend and Financing Policies with a Computer Terminal

This study examines the value relevance of mandated disclosures by UK firms of the investor‐firm share of liabilities of equity‐accounted associate and joint venture investees. It does so for the six years following the introduction of FRS 9: Associates and Joint Ventures, which forced a substantial increase in such disclosures by UK firms. Since the increased disclosure requirements were partly motivated by concern that single‐line equity accounting concealed the level of group gearing, and in light of previous US results, it is predicted that the mandated investee‐liability disclosures have a negative coefficient in a value‐relevance regression. The study also examines whether value‐relevance regression coefficients on investee‐liability disclosures are more negative for joint ventures than for associates and whether they are more negative in the presence of investor‐firm guarantees of investee‐firm obligations than in the absence of such guarantees. The study reports that the coefficient on all investee‐liability disclosures taken together has the predicted negative sign, and is significantly different from zero. It finds little evidence that the negative valuation impact of liability disclosures is stronger for joint venture investees overall than for associate investees overall, or stronger for guarantee cases overall than for non‐guarantee cases overall. There is, however, some evidence that the impact for joint venture guarantee cases is stronger than that for joint venture non‐guarantee cases and stronger than that for associate guarantee cases.     

Liability insurance under the negligence rule

We incorporate the concept of evidentiary standard to the analysis of the negligence rule under liability insurance and court errors. When the postaccident evidence is privately contractible and not too noisy, efficiency is achieved by both strict liability and a negligence rule with appropriate due care and evidentiary standards. When the evidence is not directly contractible, trial outcomes represent useful contractible information for the risk‐incentives tradeoff in the liability insurance policy. Strict liability is then inefficient and dominated by the negligence rule. The negligence rule can itself be improved upon by decoupling damages from the harm suffered by the victim.     

Precision and Manipulation of Non-financial Information: The Curious Case of Environmental Liability

This paper develops a model showing how the environmental liability regime and the precision of the disclosed environmental performance indicator affect managers’ incentives (1) to reduce actual pollution and (2) to manipulate the reported pollution. I assume a company with a separation of ownership and control which can be held liable for environmental damages and distinguish between a negligence regime and strict liability. The results suggest that if there is no manipulation but only a lack of precision of the disclosed environmental performance indicator, a negligence rule induces lower actual pollution levels than strict liability even though a negligence rule is considered to be more lenient. If managers are able to manipulate the disclosed environmental performance indicator, they will do so and actual pollution levels will generally increase. While manipulation makes it easier for shareholders to escape liability under a negligence regime, shareholders suffer from manipulation under strict liability due to higher actual pollution and higher expected damage compensation payments. Therefore, the manipulation level is higher under a negligence regime. My analysis contributes to the environmental performance and disclosure literature by showing that the liability regime is an important determinant affecting environmental reporting and actual pollution decisions.     

Pflichthaftpflichtversicherung für Hersteller von Medizinprodukten – überfällig oder überflüssig?

Given actual legislative initiatives in the German Bundestag the question arises as to whether in the interest of patient safety-compulsory liability insurance for producers of medical devices should be implemented. At present, these proposals for reform are incompatible with the constitutionally-guaranteed principles of professional freedom and freedom of contract. Furthermore, it is questionable whether compulsory liability insurance would in fact improve the situation of patients taking into consideration the insurer’s status and possible release from obligation. Should compulsory liability insurance pass constitutional review due to new factual findings in the future, a direct claim against the liability insurer is not advisable. A possible victim compensation fund is not to be financed by the producers or their liability insurers.     

Should the Power to Redistribute Income be (De-)Centralized? An Example

This paper deals with two questions which have recentlyreceived considerable attention in both the political debateand the academic literature: First, are fiscal programs largeror smaller when they are (de-)centralized? Second, should suchprograms be (de-)centralized? We answer these questions withina politico-economic model in which voters choose the parametersof a linear income tax taking into account how taxes affect laborsupply and migration decisions. It is shown that a decentralizedpolitical system may lead to a smaller government budget. Theconcept of a veil of ignorance is used to analyze the desirabilityof a decentralized system. It is argued that a decentralizedsystem is preferred under the veil of ignorance only if individualsare not too risk-averse and the income distribution is not toopolarized.     

The Limits of Limited Liability: Evidence from Industrial Pollution

We study how parent liability for subsidiaries' environmental cleanup costs affects industrial pollution and production. Our empirical setting exploits a Supreme Court decision that strengthened parent limited liability protection for some subsidiaries. Using a difference‐in‐differences framework, we find that stronger liability protection for parents leads to a 5% to 9% increase in toxic emissions by subsidiaries. Evidence suggests the increase in pollution is driven by lower investment in abatement technologies rather than increased production. Cross‐sectional tests suggest convexities associated with insolvency and executive compensation drive heterogeneous effects. Overall, our findings highlight the moral hazard problem associated with limited liability.     

Negligence,Ignorance and the Demand for Liability Insurance

This paper considers whether lack of information regarding risk exposures can lead to a demand for negligence liability insurance. We find that, under the uniform negligence rule, such as the “reasonable person” standard used to determine negligence in the U.S. and other countries, the value of information is positive and any demand for liability insurance must come from informed individuals. The necessary and sufficient condition is that good risks find it less costly to be negligent and purchase insurance.     

Auditor Reputation Under Different Negligence Regimes

Do auditor reputation effects evolve the same way under precise negligence as under vague negligence? Or are there differences? We assume that investors update their beliefs on unobservable auditor quality when an auditor discloses an inaccurate report. We call this a reputation effect. A necessary condition for reputation effects to occur is that, ex ante, investors expect ‘good’ auditors to take more care than ‘bad’ auditors such that ‘good’ auditors are less likely to issue an inaccurate report. Consistent with empirical evidence, we assume that wealthier (‘good’) auditors tend to take more care than less wealthy (‘bad’) auditors. We find that under vague negligence, reputation effects will occur, inducing both types of auditor to increase the level of care taken. A ‘good’ auditor is likely to exert excessive care. Then, even in the absence of auditor risk aversion, a (properly defined) liability cap is necessary to induce efficient incentives. A contractual liability cap is preferable to a legally fixed liability cap. Under precise negligence, a ‘good’ auditor will exert the standard of due care. However, a ‘bad’ auditor will also do so if sufficiently wealthy. Consequently, ex ante, investors do not expect different levels of care to be taken or reputation effects to occur. A liability cap is not desirable. This paper highlights the importance of non‐legal sanctions in auditor liability. Finally, it links the ‘reputation’ and ‘deep pocket’ hypotheses, both of which have attempted separately in the past to explain the positive correlation between auditor size and auditor quality.     

Ausweitung der Arzthaftung als Einfallstor für neue Formen der Arzthaftpflichtversicherung?

In a recent case, the Austrian Supreme Court remarkably extended medical liability of a gynaecologist for inadequate information about a possible mental handicap of an unborn child. On this occasion, the paper outlines the modified risk exposure of physicians and analyses a possible impact of case-law on the availability and affordability of liability insurance. It raises the question whether a liability crisis could be possible in Austria and briefly explains the underlying U.S. legal and regulatory framework that led to liability crises in the past. In the U.S., alternative risk transfer by means of Risk Retention Groups (RRGs) has been crucial in improving availability and affordability of liability insurance and to rein in liability crises. The Austrian legal and regulatory framework as it stands now would allow for self insurance solutions like Risk Retention Groups but the economic necessity for alternative solutions to traditional insurance schemes seems to be lacking.     

The Role of Holding Company Financial Information in the Insurer-Rating Process: Evidence From the Property-Liability Industry

We examine data for the year ended December 31, 1997 for 80 publicly traded property‐liability insurers that have Best financial strength ratings of their consolidated insurance‐operating subsidiaries. These firms employ a holding company structure, in which a parent owns the stock of multiple insurance‐operating subsidiaries. The operating subsidiaries prepare a consolidated annual report using the Statutory Accounting Principles (SAP), and an analogous set of financial statements based on the Generally Accepted Accounting Principles (GAAP) is released by the parent. We find that the financial characteristics important in determining ratings at the individual firm level—capitalization, liquidity, profitability, and size—are also important at the group level. Further, financial ratios from holding company statements are incrementally useful in the ratings' process, after group‐level ratios have been taken into account. Robustness tests based on a subsample of holding companies with minimal investment outside of the property‐liability industry reinforce our conclusion that parent company statements influence consolidated group ratings. However, our data do not allow us to separate the relative contribution of the GAAP model and underlying transactions to the ratings decision.     

Intersections of law and accountancy: Unlimited auditor liability in the United Kingdom

In recent years, considerable pressure has grown within the British auditing industry for limitation of liability arising from negligent mis-statements in audit reports. Under British company law, auditors are forbidden from contracting with companies for their liability to be restricted. This legal provision was introduced in the Companies Act 1929 as a byproduct of legislation relating to directors' liability. The paper explores the background to this legal provision, observing that auditor liability cannot be viewed as a self-contained matter of interest only to a limited community. Attitudes to auditor liability have been shaped against a background of changes in the law of negligence, some, but by no means all, arising from cases involving auditors. Moreover, changing concepts of the position of the auditor within corporate governance structures have at different times encouraged and discouraged the assimilation of the legal treatments of auditors and directors. These concepts themselves reflect differing notions of what actually constitutes the “company”: a collectivity of shareholders or a separate entity controlled by directors. These notions emerged against a background of corporate failure and the need to allocate losses among various parties with different degrees of culpability for failure. However, legal developments do not account by themselves for changing attitudes within the auditing industry towards unlimited liability; acceptance of full responsibility for one's statements, adopted as a badge of professional status, has more recently been seen as inhibiting the commercial development of British auditing.