回到“定分”经济学： 法律经济学对科斯定理的误读与澄清

科斯定理面世至今,不管是在经济学界还是法学界,均存在对该定理的诸多理论误读。从科斯一以贯之的理论逻辑出发,基于一般化的交易成本概念和比较制度分析进路,科斯定理的重点是科斯第二定理（或科斯定律）,即一种“经济的法律分析”。但基于新古典经济学的最优化思维,波斯纳错将科斯第一定理视作科斯定理的核心和重点,不仅将该定理内在的财富最大化视为法律（包括立法和司法）的应然目标,也将最优化模型视为法学研究的基本方法。这是一种将法律视为新古典经济学最优理论之新殖民地的“法律的经济分析”。该理论不仅与科斯经济学背道而驰,还导致了国内法学界在科斯定理上的误判和误用。基于此,我们应该回归科斯所提倡的一种基于比较制度分析的定分经济学。     

The Politics of Russian Enterprise Reform: Insiders, Local Governments, and the Obstacles to Restructuring

Russia and other countries in the Commonwealth of IndependentStates that have implemented voucher privatization programshave to account for the puzzling behavior of insiders—manager-owners—who,in stripping assets from the firms they own, appear to be stealingfrom one pocket to fill the other. This article suggests thatasset stripping and the absence of restructuring result frominteractions between insiders and subnational governments ina particular property rights regime, in which the ability torealize value is limited by uncertainty and illiquidity. Asthe central institutions that govern the Russian economy haveceded their powers to the provinces, regional and local governmentshave imposed a variety of distortions on enterprises to protectlocal employment. To disentangle these vicious circles of control, this articlesconsiders three sets of institutional changes:; adjustmentsto the system of fiscal federalism by which subnational governmentswould be allowed to retain tax revenues generated locally; legalimprovements in the protection of property rights; and the provisionof mechanisms for restructuring and ownership transformationin insider-dominated firms. The aim of these reforms would beto change the incentives that local governments, owners, andinvestors face; to convince subnational governments that a moresustainable way of protecting employment lies in protectinglocal investment; to raise the cost of theft and corruptionby insiders and local officials; and to allow investors to acquirecontrolling stakes in viable firms.      

聚焦“债转股” 金融资产管理公司立法的重大发展——《金融资产管理公司条例》评析

由国务院公布施行的《金融资产管理公司条例》，是我国所颁布的第一部有关金融资产管理公司和债权转化为股权的法规，这部法规的出台无疑是金融资产管理公司立法的重大发展。本文从分析《条例》促进金融资产管理公司立法的发展入手，试图对《条例》的内容作一简单评述。     

The boundaries of firms as information barriers

When contracts are incomplete, the property‐rights theory of firms suggests that ownership of physical assets provides better outside options, which in turn strengthen the owner's incentives to invest in the enterprise. This approach is less suitable for human capital firms such as management consulting that lack physical assets. This article develops an alternative theory for integration that sheds light on the boundaries of human capital firms. In particular, when a relationship between parties includes large potential externalities, reducing the outside option of each party will be beneficial. Integration provides this reduction by blurring the contribution of individual parties within the firm, and thus lowering their independent market valuation. Unlike some results in the property‐rights literature, the results here are robust to variations in ex post bargaining solution.     

Credibility of Rules and Economic Growth: Evidence from a Worldwide Survey of the Private Sector

A business environment characterized by "incredible" rules suchas unclear property rights, constant policy surprises and reversals,uncertain contract enforcement, and high corruption most likelytranslates into lower investment and growth. The literatureon growth and policies has suggested different ways to measurethe relevant uncertainties. This article proposes a new measurementapproach based on firm-level surveys and an indicator of the"credibility of rules." Using data from a private sector surveyconducted in 73 countries and covering more than 3,800 enterprises,standard cross-country growth and investment analysis indicatesthat low credibility of rules is associated with lower ratesof investment and growth. The survey was designed to capturelocal entrepreneurs' views of the predictability of changesin laws and policies, of the reliability of law enforcement,of the impact of discretionary and corrupt bureaucracies, andof the danger of policy reversals due to changes in governments.Confidence in the reliability of the survey results opens manyavenues for further research that could exploit the micro dimensionsof this data set.     

The impact of constitutional property law on insolvency law in South Africa

It is common for insolvency legislation to interfere with the property rights of debtors, creditors and third parties in pursuit of its purpose to provide an orderly and fair resolution to insolvency‐related problems. However, the South African property clause, Section 25 of the Constitution, prohibits arbitrary interferences with vested property interests. In light of this, this article focuses on the application of Section 25 to insolvency law in South Africa. The question is whether interferences with property rights in terms of insolvency legislation qualify as deprivations of property for constitutional purposes and, if so, whether they comply with the relevant validity requirements. This article investigates this question by explaining the interaction between insolvency law and constitutional law in general, followed by a closer look at the application and operation of the property clause in particular. Thereafter, three examples from case law are discussed to illustrate the role of constitutional property law in evaluating the effects of insolvency legislation in South Africa. The conclusion is drawn that, as long as the relevant requirements are met, the norms underlying the property clause do not hinder the development and implementation of legitimate and necessary insolvency procedures that could impact on vested property rights.     

Rights in rem,Article 5 and the EC Insolvency Regulation: an English perspective

The treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.     

美国油气法捕获规则的形成与发展——兼及对中国立法的启示

美国油气法捕获规则系判例法确立的一项产权制度,从野生动物捕获规则移植而来.该规则对美国石油天然气产业发展起到了极大的促进作用,但同时也产生了过度开采、资源浪费等问题.美国各州相继通过颁布强制联营规则、井间距规则、禁止浪费规则等一系列配套立法对油气法捕获规则进行修改和限制,提高了油气开采效率,保证了油气产业的有序发展.借鉴美国油气法捕获规则的立法与司法经验,我国未来石油天然气立法应当制定油气资源矿业权重叠情形下的联合开发规则,同时应当完善石油天然气上游产业市场准入制度和油气开采监管制度.     

Two‐sided markets: a progress report

We provide a roadmap to the burgeoning literature on two‐sided markets and present new results. We identify two‐sided markets with markets in which the structure, and not only the level of prices charged by platforms, matters. The failure of the Coase theorem is necessary but not sufficient for two‐sidedness. We build a model integrating usage and membership externalities that unifies two hitherto disparate strands of the literature emphasizing either form of externality, and obtain new results on the mix of membership and usage charges when price setting or bargaining determine payments between end‐users.     

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.     

Debt overhang and non-distressed debt restructuring

In this paper, we analyse the restructuring of debt in the presence of debt overhang. The firm starts out with a debt liability and an investment opportunity. Then with unrestructured debt, the firm maintains the current borrowing payments until default or investment. If the creditors allow the parties to restructure the debt with exchange offers, then the borrowing payments change as well as the default and investment points. We find that there is a unique optimal restructuring path which maintains debt at positive levels but defers default indefinitely. This path is optimal regardless of whether the debt holders or the firm control the process through superior bargaining power. Moreover, a debt-for-equity exchange to remove all existing debt takes place just before investment that is followed by the issue of an optimal amount of new debt as part of the funding for the investment cost. The optimal investment trigger is higher along the optimal restructuring path than it is for an unlevered firm. We discuss the findings in the light of existing empirical evidence.     

„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.     

The impact of delay: Evidence from formal out-of-court restructuring

Different types of bankruptcy restructuring procedures are used in most legal systems to decide the fate of businesses facing financial hardship. We study how bargaining failures in an under-researched type of restructuring procedure, a formal out-of-the court procedure impacts the economic performance of participating firms. Croatia introduced a “pre-bankruptcy settlement” (PBS) process in the wake of the Great Recession of 2007–2009. A novel dataset provides us with annual financial statements for both sides of more than 180,000 debtor–creditor pairs, enabling us to address selection into failed negotiations by matching a rich set of creditor and debtor characteristics. Failures to settle at the PBS stage due to idiosyncratic bargaining problems, which effectively delay entry into the standard bankruptcy procedure, lead to a lower rate of survival among debtors as well as reduced employment, revenue, and profits. We are the first study to track how bargaining failures diffuse through the network of creditors, finding a significant negative effect on small creditors, but not others. Our results highlight the impact of delay and the importance of structuring bankruptcy procedures, to rapidly resolve uncertainty about firms’ future prospects.     

Ethics and conflicts,the role of insolvency professionals in the integrity of the Canadian bankruptcy and insolvency system

Insolvency practice involves a balance between adherence to rules of ethical conduct and the avoidance of conflicts of interest, and the need to find cost effective methods of debt collection or restructuring under the statutory regime. Potential conflicts of interest are inherent in the multiple roles granted to such professionals under the insolvency system, whether the financial distress is personal or commercial. This article begins to explore whether or not these conflicts serve as barriers to the effective administration of the insolvency and bankruptcy system. It also examines whether oversight of professional ethics and avoidance of conflicts is a matter for legislative intervention or best left to the profession, including temporal and materiality issues in disclosure of potential conflicts, and accountability to stateholders through the appointment process. The key issue is how one manages those conflicts while maintaining the integrity of the system. Copyright © 2004 John Wiley & Sons, Ltd.     

资源控制权、控制权收益与会计师事务所合并

本文试图探讨产权对会计师事务所合并的影响。考察会计师事务所的产权关系,可以发现,由审计市场供求关系诱发的资源控制权的个人化,为大股东建立以资源控制权为导向的利益分配机制提供了机会。由于控制权主体的控制权收益的补偿成为谈判的条件之一,从而增加了合并的难度,因此控制权收益的补偿成为事务所合并的主要障碍。     

FINANCIAL STYLE AND CORPORATE CONTROL

who will control the process of realizing values inherent in a particular business? If the answer is to be “Management,” then a more assertive financial style and an accelerated financial restructuring timetable may be required to accompany any necessary business restructuring activities. In the new financial environment, failure to take the initiative to implement prudent, well-reasoned financial restructuring may allow outside interests to re-define the game. Management would thus lose control of the value creation process.     

深化国有资产管理体制改革的取向分析

根据现代产权理论分析，无论产权的最终归属是谁，只要产权界定清晰，就是有效率的产权制度安排。而我国国有产权制度安排缺乏效率的主要症结正好在于国有产权界定不明晰，这说明国有资产管理体制存在弊端。为此，须加快国有产权制度创新，深化国有资产管理体制改革。     

Time-Limited Property Rights and Investment Incentives

Although it is axiomatic that property rights of infinite duration are necessary for owners to make efficient long term investments in their property, time limits on property rights are pervasive in the law. This paper provides an economic justification for such limits by arguing that they actually enhance property values in the presence of imperfect information. In so doing, the analysis offers a coherent approach for understanding what otherwise appear to be unrelated doctrines in the law.     

会计准则、资本市场监管规则与盈余管理之遏制:来自上市公司债务重组的经验证据

本文利用1999年、2001—2007年上市公司债务重组的数据来研究会计准则和资本市场监管规则在遏制公司盈余管理方面的作用。本文通过分析认为,为遏制上市公司的盈余管理,从上市公司盈余管理的动机端入手更为有效。就上市公司盈余管理主要为满足资本市场监管要求之动机而言,应该从资本市场监管规则的改进入手。而会计准则因其公共合约性质和不完备性,既没有责任也没有能力去遏制上市公司的盈余管理行为。1999年、2001—2007年间上市公司的债务重组行为支持本文的这一观点,来自上市公司债务重组的经验证据显示,是资本市场监管规则而非会计准则在影响和制约着上市公司是否利用债务重组来进行盈余管理。     

Blanket guarantee,deposit insurance and restructuring decisions for multinational banks

This paper examines blanket guarantee, deposit insurance and restructuring decisions with respect to a multinational bank (MNB) using Nash bargaining when the threat of a bank panic motivates countries to make decisions quickly. Failure of the bank would unevenly distribute externalities across countries, influencing the restructuring incentives. In equilibrium, the bank is either liquidated or one of the countries – or both – recapitalizes it. A partition of the recapitalization costs is sensitive to the country-specific benefits and costs from recapitalization, panic and liquidation. The home regulator benefits from the advantage that it is the only entity that can legally liquidate the MNB. Rational expectations regarding the bargaining result affect the incentives to declare a blanket guarantee.