欧盟税收管辖权的现状与趋势

欧盟有关税收问题的规定,约束了成员国的税收立法内容,并且已经超越成员国的独立税收管辖权,导致成员国税收管辖权部分转移,出现超越国家的税收管辖权现象。欧盟法律制度的主要目标之一就是消除统一市场的人为和制度障碍,促进共同市场内部的商品、劳动力、资本和服务流动。欧盟在处理与成员国之间的税收管辖权问题上已经取得了有益的进展,但是,税收管辖权由国家向国际组织行使的转变仍然任重道远。     

刍议税收协定执行中的所得定性问题

对所得的定性在税收协定执行中居于十分重要的地位。一般而言,所得的性质不同,所得的税收管辖权与税收待遇也不尽相同。目前,由于不同性质所得之间的界限模糊、各国的税法存在差异等原因,准确对所得定性非常困难。本文认为,我国应采取明确国内税法对所得的定义、扩大特许权使用费的范围等策略来应对所得定性问题所带来的挑战。     

Grounds for Refusal of Recognition of (Quasi‐) Annex Judgements in the Recast European Insolvency Regulation

Insolvency‐related (annex) actions and judgements fall within the scope of the Recast European Insolvency Regulation (‘Recast EIR’). That instrument both determines international jurisdiction regarding annex actions and sets up a simplified recognition system for annex judgements. However, tension between the Recast EIR's provisions on jurisdiction and recognition arises when a court of a state different from the state of insolvency erroneously assumes jurisdiction for annex actions. Such ‘quasi‐annex’ judgements rendered by foreign courts erroneously assuming jurisdiction threaten the integrity of the insolvency proceedings. Besides, the quasi‐annex judgements may violate the effectiveness and efficiency of the insolvency proceedings as well as the principle of legal certainty. In this article, it is argued that even the current legal framework may offer some ways to avoid the recognition of such quasi‐annex judgements. First, the scope of the public policy exception may be extended in order to protect the integrity of the insolvency proceedings from the quasi‐annex judgements rendered by foreign courts erroneously assuming jurisdiction. Second, it may be argued that quasi‐annex judgements do not equal real annex judgements and therefore do not enjoy the automatic recognition system provided by the Recast EIR. At the same time, their close connection to the insolvency proceedings – disregarded by the forum erroneously assuming jurisdiction – may exclude quasi‐annex judgements from the scope of the Brussels Ibis Regulation, as well. As a consequence, those quasi‐annex judgements may fall within the gap between the two regulations, meaning that no European instrument instructs the courts of the member state addressed to recognise quasi‐annex judgements. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.     

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.     

略论国际借款合同的准据法

正确确定合同准据法是有效解决国际贷款合同法律冲突的关键，准据法的确定一般应遵循当事人意思自治原则和有管辖权的法院确认原则，就国际融资实践而言，国际借款合同的准据法的适应范围是很广的，但在涉及当事人身份能力，合同形式以及有关诉讼程序等问题上却不适用合同准据法，而受其他有效法律的调整。     

The legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law

This article discusses and compares the respective legal responses of Canada and Poland to international bankruptcy and insolvency with a focus on cross‐border insolvency law. Specifically, the issues addressed herein concern jurisdiction, recognition of foreign bankruptcy proceedings, and co‐operation with foreign courts and foreign administrators. Notwithstanding some real differences between Canadian and Polish international insolvency proceedings, both legal regimes may be compared, since both countries have adopted many of the principles contained in the UNICTRAL Model Law on Cross‐Border Insolvency. The major impetus behind the changes established by Canada in its bankruptcy and insolvency laws have been the economic realities produced by the North American Free Trade Agreement. Likewise, Poland's accession to the European Union (EU) has been a major catalyst for revising the Polish Insolvency and Restructuring Act. Part II of the said act is entirely devoted to international insolvencies. However, following Poland's adherence to the EU, those sections of the Polish Insolvency and Restructuring Act that deal with international or cross‐border insolvencies will be severely limited or constrained in scope. The article indicates that Poland, the EU and Canada are taking the necessary steps to meet the needs of debtors who would like to restructure in an international setting. Copyright © 2006 John Wiley & Sons, Ltd.     

论我国证券监管机构的域外管辖权——以科创板开放红筹企业上市为视角

美国在反欺诈、反贿赂的域外管辖权等公法部分的证券立法经验,对于我国红筹企业在科创板上市的管辖权完善具有积极的借鉴意义。与SEC相比,我国证券监管机构在跨境执法权限上的立法层级不高,调查取证等原则性规定的实际指导意义有限,在司法与执法互动的制度上仍待完善,双边合作监管等“软法”性质的跨境执法合作也比较少。有必要通过赋予证监会更多独立性,建立以司法互动为核心的跨境执法机制,加强柔性跨境执法合作等方式,完善我国证券域外管辖与跨境执法。     

Agenda Entrance Complexity in International Accounting Standard Setting: The Case of IFRS for SMEs

Features of rational decision making (such as agenda entrance criteria and statement of jurisdiction) barely conceal the complexity of international accounting standard setting. In 2003, when the International Financial Reporting Standard for Small and Medium‐sized Entities (IFRS for SMEs) project achieved agenda entrance, the International Accounting Standards Board's (IASB) jurisdiction was to develop, ‘a single set of … accounting standards … to help participants in the world's capital markets’. Drawing on interviewees' recollections and other material, this study of how the project achieved agenda entrance finds within‐IASB opposition to the project, arguing it was outside the IASB's jurisdiction that dissolved with the realisation that the IASB's jurisdiction would be changed to encompass the project.     

Cross‐Border Debt Adjustment – Open Questions in European Insolvency Proceedings

At present, 18 European Union member states have some form of legislation on adjustment of the debts of a private individual. Only half of these debt adjustment proceedings are mentioned in Annex A of the European Insolvency Regulation (EIR) and therefore fall within the scope of it. As most of the debt adjustment proceedings are not included in the scope of the Brussels I Regulation, there is a regulatory gap in the European insolvency proceedings with unpleasant impacts on the free movement of labour. Fortunately, changes are coming, in the form of the EIR reform. In order to bring debt adjustment within the scope of the EIR, the Commission proposes to loosen the prerequisite concerning the legal effects, which the opening of the proceedings has on the debtor. Regarding the jurisdiction to open main proceedings, the Commission proposes that COMI (the debtor's centre of main interests) would be the place of habitual residence. The open question is, whether residency requires a certain continuity or stability. This issue is discussed in the paper taking into account recent Court of Justice of the European Union case law. The challenge of the EIR reform is that only provisions on scope and jurisdiction have been modified as to debt adjustment. One may ask, e.g. when the prerequisites concerning the opening of secondary proceedings are fulfilled if the debtor is a private individual. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

The United Nations Convention on the Assignment of Receivables in International Trade: insolvency aspects

Breaking new ground, the UN Convention on the Assignment of Receivables in International Trade refers all priority conflicts with respect to receivables to the law of single and easily determinable jurisdiction, and one that is most likely going to be the insolvency jurisdiction, namely to the law of the assignor's place of business or, in the case of places of business in more than one State, the assignor's central administration. In the case of an insolvency proceeding in another jurisdiction, the mandatory rules of that juridiction displace any priority rule of the law of the assignor's location only if that priority rule is manifestly contrary to the public policy of that jurisdiction. In such a case, the balance of the priority rules of the law of the assignor's location prevails over the priority rules of the insolvency jurisdiction with the exception of rules relating to preferential rights. In any case, the Convention ensures that priority rules do not interfere with basic insolvency rights, such as those relating to stays, avoidance actions and to the performance of contracts or maintenance of the estate. Copyright © 2004 John Wiley & Sons, Ltd.     

税收执法自由裁量权滥用及其救济制度设计

目前,在税收执法过程中,经常发生滥用自由裁量权的情况。为此,应该对自由裁量权进行有效的控制,通过确定应遵循的原则、设计救济制度等措施,一方面使自由裁量权能有效运作,保证行政管理能动作用的发挥;另一方面防止行使者滥用权力,从而保障纳税人的合法权益。     

Right‐to‐Work Laws and Financial Leverage

High leverage can be used to improve a firm's bargaining position with unions. I find that this use of leverage in the United States is concentrated in states without right‐to‐work (RTW) laws. The use of high leverage by unionized firms in these states is associated with high market‐to‐book ratios and is more likely when shareholder and manager interests are aligned through compensation contracts. I confirm these findings by examining the adoption of RTW laws in Oklahoma, as well as presidential and congressional elections. Moreover, I confirm the importance of RTW laws using cash balances instead of leverage.     

„Unisex-Tarife“ — Gleichbehandlung von Männern und Frauen im privatrechtlichen Versicherungswesen

The enactment of a council directive ‘implementing the principle of equal treatment between women and men in the access to and supply of goods and services’ is beyond the EC’s legislative competences as far as it obliges private insurers to charge ‘unisex-rates’. Especially Art. 13 ECT constitutes no corresponding jurisdiction. Furthermore the compatibility of the draft directive and the principle of subsidiarity as laid down in Art. 5 II ECT is very doubtful. German laws implementing the directive needed to be in accordance with the Basic Constitutional Law of the Federal Republic of Germany since a considerable leeway in implementing the directive is left to the national legislator. In this respect such rules of law are open to judicial review by German courts of justice. The Federal legislator would have a so called concurring legislative competence according to Art. 74 I Nr. 11 GG (insurance industry under private law) and Art. 72 II GG. The legal obligation to apply ‘unisex-rates’ would lead to an unequal treatment of the sexes without adequate justification. Thus German implementation laws would infringe Art. 3 II1 and III 1 GG. The ban of gender-related actuarial factors would, after all, be incompatible with the Freedom of Profession of the concerned insurers guaranteed in Art. 12 I GG.     

知识产权与司法相关的近期热点问题综述——来自我国台湾地区的观察与省思

在促进我国台湾地区知识产权法进步一事上,其司法仍可大有作为。智慧财产法院整体而言,欠缺考虑台湾地区所处发展阶段的需要 (例如汽车零件市场欠缺竞争与设计专利的强制许可,以及名牌商品二手市场迟迟无法建立仿冒品认定机制),对于方兴未艾的营业秘密保护议题的掌握有诸多令人担忧之处。展望未来,智慧财产法院应做大幅度改革,宜只专门审理专利及其他技术案件（例如植物新品种）,应转型为二级法院,应为法官建立定期轮调制度。可惜,台湾地区“司法院”并未认知到前述问题,反而将智慧财产法院改组为“智慧财产及商业法院”,将法官人数9人、高等法院层级、管辖重大商业民事的商业法院并到智慧财产法院,但是就智慧财产法院的组成、职掌以及案件的审理并未做任何改变。     

税收管辖权原则及其灵活运用

税收管辖权原则包括属地原则和属人原则。美国联邦税制改革总统顾问小组建议美国公司所得税的税收管辖权原则由属人原则转变为属地原则。本文认为,这种转变对我国的税收收入、我国企业的竞争力等影响不是很大,但是,从国际形势和中国当前的宏观经济特点来看,我国有必要对税收管辖权原则进行灵活调整。     

新企业所得税法的税收管辖取向

本文主要阐述了新企业所得税法的税收管辖取向,探究其与国际税收协定的冲突和协调,并就新企业所得税法对税收管辖权的运用进行了分析。     

中国地方预算决策自主权缺失问题分析

实现地方预算决策自主权的合理归位是确保地方公共产品有效供给的核心制度安排。地方预算决策自主权的内容包括:(1)地方辖区居民选择地方预算决策主体的权力;(2)地方预算决策主体自主作出地方预算决策安排的权力。文章从这两大方面深入、客观地剖析了中国地方政府预算决策自主权缺失的具体表现。     

证劵发行管制下的地方“护租”与上市公司财务困境风险化解

通过分析证券发行管制下的地方"护租"行为研究了地方政府参与辖内上市公司财务困境风险化解机制:中央政府证券发行管制形成垄断租金,地方政府围绕证券发行机会的竞争使得垄断租金转化成为可占用性准租,为了辖内公司获得未来发行证券机会,避免租值转移,地方政府积极参与辖内上市公司财务困境风险化解。上述理论分析得到了经验证据的支持。以2005—2009年处于财务困境上市公司为研究样本,发现辖内上市公司处于财务困境状况对该地区未来的公司证券发行申请通过发审委审核比例存在显著影响,地方政府则会根据自身执行能力努力减少辖内上市公司处于财务困境。本文的研究对于中国转型期证券行政监管阶段性有效,特别是地方政府积极参与辖内上市公司财务困境风险化解给出了机理性解释并提供了经验证据。     

The Legal Origins of Financial Development: Evidence from the Shanghai Concessions

The primary challenge to assessing the legal origins view of comparative financial development is identifying exogenous changes in legal systems. We assemble new data on Shanghai's British and French concessions between 1845 and 1936. Two regime changes altered British and French legal jurisdiction over their respective concessions. By examining the changing application of different legal traditions to adjacent neighborhoods within the same city and controlling for military, economic, and political characteristics, we offer new evidence consistent with the legal origins view: the financial development advantage in the British concession widened after Western legal jurisdiction intensified and narrowed after it abated.     

From contract to speech: the courts and CPA licensing laws 1921–1996

This paper explores the ways in which accounting, licensing legislation and the courts have intersected over time, shaping and reshaping the contours of the CPA's economic jurisdiction and thereby restricting and/or enhancing competition between CPAs and the uncertified. While much attention has focused on the use of legislation and favorable interpretations of these statutes as a means of obtaining and expanding exclusive areas of work, little work has considered the role of the courts as a forum in which to contest and thereby limit the expansion activities of CPAs. The courts have played an important role in deciding issues such as who can be called a CPA, who can be called an accountant and when can a CPA be called a CPA. In deciding these issues, the courts have relied upon shifting constitutional arguments to advance and curb the jurisdiction building activities of CPAs. Early arguments called upon notions of the freedom of contract to challenge legislatively imposed limits on who might perform accounting work. Such arguments were later supplemented and eventually supplanted by those based upon freedom of speech, a freedom only recently held to extend to commercial speech. These shifting arguments are traced in the paper which concludes with some observations about the changing significance of the CPA designation.