刑事涉财产执行中的案外人权益救济——以案外人权益救济程序的当事人构造为视角

刑事涉财产执行程序因采取移送执行模式而被误认为不存在申请执行人，使得刑事涉财产执行程序及其衍生的案外人权益救济程序过分依赖执行法院的职权主义。在刑事附带民事诉讼裁判、追缴或责令退赔违法所得并返还被害人判项、责令被免予刑事处罚的被告人赔偿被害人损失判项的执行程序中，案外人权益救济程序原则上应以被害人为申请执行人，并参照适用民事强制执行程序中的案外人权益救济制度。其他刑事涉财产执行程序应以检察机关为申请执行人。除非出现被执行人逃避执行或者案外人对执行标的提出排除执行请求等特殊情形，作为申请执行人的检察机关通常无须现实参加执行程序。     

A sequential model for cracking down on street markets for illicit drugs

This paper develops a sequential decision-making model for assisting law enforcement officials in allocating resources during a crackdown operation on illicit drug markets. The sequential crackdown model (SCM) considers a probabilistic framework, where the probability of incarceration of a dealer and the probability of dealing are modeled as a function of the size of a drug market, crackdown enforcement level, drug dealer's financial hardship, and other market characteristics.The model was developed and tested in consultation with enforcement officials from Philadelphia, PA and Camden, NJ. We present a detailed, step-by-step implementation scheme for updating parameters on each day of the crackdown. Parameter estimation along with examples of model usage is provided. Through these examples, we illustrate how the SCM could be helpful in understanding the response of illicit drug markets to various enforcement strategies. We further show conditions under which an alternating crackdown policy (referred to as a crackdown-backoff) or a consistent use of maximum possible enforcement would be optimal strategies for managing a drug crackdown operation. Within the context of the model and parameter estimates, we show that a much quicker and less costly collapse could be implemented if the available enforcement resources are increased. Finally, the model provides possible conditions under which a crackdown operation would be unsuccessful in eliminating a drug market.     

德国煤矿安全生产管理的经验及启示

近年来，虽然我国煤矿安全生产在稳步好转，但是，仍然面临严峻的形势，重特大事故仍时有发生。尤其是与发达国家德国相比，我国的煤矿安全生产管理还有待加强与改善。所以，本文试图提出合理地借鉴德国的煤矿安全生产管理经验，以推进和完善我国的煤矿安全生产。     

《消法》中"加倍赔偿"法律责任的理解和适用

对《消法》第49条的加倍赔偿法律责任的正确理解有两个前提加倍赔偿法律责任的性质和加倍赔偿法律责任的立法精神.适用加倍赔偿法律责任的关键问题是如何认定欺诈,欺诈的四个构成要件是认定的依据.加倍赔偿法律责任在适用中应注意第三人能否成为加倍赔偿法律责任适用的对象和加倍赔偿计算方法有不妥之处这两个问题,应对生产者、经营者共谋欺诈行为进行惩罚,并对赔偿标准进行修正.     

Achieving High Quality, Comparable Financial Reporting: A Review of Independent Enforcement Bodies in Australia and the United Kingdom

This article provides a review of the activities of two quite different types of national enforcement body, the U.K.'s Financial Reporting Review Panel (FRRP) and the Australian Securities and Investments Commission (ASIC). We present material (some not available elsewhere) about their activities over the period 1998–2004 and show that both types of body can fulfil an enforcement role, albeit subject to political forces. We also assess the relevance of the bodies' past activities for comparable international enforcement following the adoption of International Financial Reporting Standards (IFRS) in 2005. A review of cases reveals that for both bodies approximately half were related to recognition and measurement issues, where interpretation can be crucial. Although there is potential for cross-country differences to arise, they may be mitigated by the participation of both bodies in international enforcement coordination activities. Past activities suggest that the scope of the bodies' activities and the extent of comparability of enforcement decisions are likely to reflect political views held within the government, corporate sector and accounting profession.     

Bankruptcy and firm finance

This paper analyzes how an enforcement mechanism that resembles a court affects firm finance. The court is described by two parameters that correspond to enforcement costs and the amount of creditor/debtor protection. We provide a theoretical and quantitative characterization of the effect of these enforcement parameters on the contract loan rate, the default probability and welfare. We analyze agents’ incentive to default and pursue bankruptcy and show that when the constraints that govern these decisions bind, the enforcement parameters can have a sharply non-linear effect on finance. We also compute the welfare losses of “poor institutions” and show that they are non-trivial. The results provide guidance on when models which abstract from enforcement provide good approximations and when they do not.      

Italian households’ debt: the participation to the debt market and the size of the loan

This paper analyses Italian households’ participation to the debt market, separating the probability of demanding a loan from the probability of being rationed by lenders; on the supply side of the market specific attention is paid to enforcement costs of the loan contract when customers default. A new result is that the age of the household head acts essentially as a demand factor, rather than a variable influencing the lender’s choice. Both current and future households’ income increase the demand for loans and reduce credit rationing. Self-employed workers are more rationed by lenders. Credit constraints are also linked to the area where the household lives, partly because of different enforcement costs. The final part of the paper analyses the equilibrium quantity of the loan, for households who have a loan and are not constrained. The loan size is positively linked to household net wealth and income profile. An important contribution of this paper is the finding that, not only the participation to the debt market, but also the loan size is negatively affected by enforcement costs.      

Do the SEC's enforcement preferences affect corporate misconduct?

Recent frauds have questioned the efficacy of the SEC's enforcement program. We hypothesize that differences in firms' information sets about SEC enforcement and constraints facing the SEC affect firms' proclivity to adopt aggressive accounting practices. We find that firms located closer to the SEC and in areas with greater past SEC enforcement activity, both proxies for firms' information about SEC enforcement, are less likely to restate their financial statements. Consistent with the resource-constrained SEC view, the SEC is more likely to investigate firms located closer to its offices. Our results suggest that regulation is most effective when it is local.     

Illegal waste disposal: Enforcement actions and decentralized environmental policy

Environmental non-compliance is affected by the decentralized shaping of environmental policy by local governments and enforcement actions by public bodies. Illegal waste disposal is examined in a relevant national case, by means of an original regionally disaggregated panel dataset for Italy, a country which witnesses heterogeneous environmental performances across regions and a decentralized policy system. Our empirical analysis produces two main insights of strong policy interest. First, commitment to a more stringent waste policy tends to increase illegal disposal of waste. Second, a nonlinear bell shaped relationship exists between the number of inspections and the quantity of illegal disposal. The key message is that deterrence might only result after a relatively high level of controls is implemented.     

控股股东“掏空”与“支持”:企业所得税的影响

源于企业所得税的征收,国家某种意义上是公司最大的“小股东”。本文将“国家股东”纳入控股股东与小股东间博弈行为的分析框架,检验企业所得税征收对控股股东“掏空”与“支持”的影响。结果表明,在“掏空”与“支持”的选择上,企业所得税会产生两方面效应:税率提高会增强控股股东“掏空”的倾向;而税收征管则能够抑制其“掏空”的倾向。区分“掏空”与“支持”两类情形,当控股股东试图“掏空”时,税率越高,税收征管强度越低,“掏空”程度越高;当控股股东试图“支持”时,税率越高,税收征管强度越高,“支持”程度越高。本文不仅提供了“掏空”与“支持”影响因素方面新的经验证据,且丰富了税与代理问题相关的学术文献。