论注册会计师责任保险制度

注册会计师责任保险对于提高会计师事务所的风险抵御能力和保护投资者利益两方面都具有重要意义.在我国,注册会计师责任保险尚处于起步阶段,无论是需求还是供给都存在不足.但随着我国虚假陈述民事诉讼制度的不断完善,注册会计师的法律诉讼风险将大大提高.为了降低事务所的执业风险、保护受到虚假陈述侵害的投资者利益,我国应当借鉴其他国家和地区的经验,完善我国的注册会计师责任保险制度,并建立相关的配套措施,促进注册会计师责任保险制度的发展.     

The Negligence Rule in the Presence of Judicial Corruption and Social Norms

This paper investigates the phenomenon of judicial corruption and incorporates it into Polinsky, A. M. (1980). Strict liability vs. negligence in a market setting. American Economic Review, 70, 363–367 framework so as to analyze the efficiency of the negligence rule. By shedding light on the role of social norms in regard to the phenomenon of judicial corruption, this analysis provides implications for policy. First, more prevalent corruption at the status quo tends to intensify the extent of the corruption itself and, as a result, the effectiveness of the government’s corruption enforcement is greatly lessened. This implies that an excessively lenient policy of corruption may result in an uncontrollable consequence; once corruption becomes rampant, it is costly to bring it down. Of great importance, in the presence of such a corruption effect, the social optimum cannot be achieved based on the negligence rule and the equivalence between the strict liability and negligence rule fails. Secondly, the attitude of the society toward a corrupt judge plays a crucial role in governing the effectiveness of an efficient wage arrangement. If the society can fully accept a corrupt judge, corruption will never be controlled even with the incentive wage scheme.

Alcohol-service liability: Consequences of guest intoxication

The purpose of this study is to examine the legal responsibilities of owners of establishments that sell and/or serve alcoholic beverages to their patrons and other people who may be assaulted or injured by those patrons in the establishment or after leaving the establishment. Examination of 246 actual court cases revealed that the plaintiff's claims are likely to fall under either the restaurant, bar, hotel, club or other hospitality operators’ failure to exercise reasonable care to protect patrons from injury at the hands of other patrons, failure to maintain a safe and orderly establishment, or from patrons injuring bystanders in violation of a dram shop act. However, findings indicated that violations of a dram shop act are likely to have the most devastating effect on the business.     

全责、免责还是损害分配： 故意侵权案件中过失相抵的适用

加害人和受害人一方或双方存在故意时,能否适用过失相抵存在判断困难。在加害人故意和受害人过失时,根据《民法典》第1173条的表述,应当适用过失相抵。但这否定了《民法典》颁布前排斥过失相抵的态度,没有充足理由,容易造成司法者的困惑。受害人存在故意时,既可适用第1173条减责,又可适用第1174条免责,缺少区分依据。双方均存在故意时是否适用过失相抵缺少法律明确规定,司法实践中也比较混乱。比较法上,从共同过失发展到过失相抵,教义学上的“同种类过错才能相抵”发展出了很多例外,但没有理论能够予以充分解释。法典规则的不同不影响普遍法理的抽象。通过归纳案例可以发现： 行为人故意中的预见内容影响了法律适用的结果。一方当事人存在故意时,如果故意的预见内容包含了另一方当事人的过失,应当对损害承担全部责任,排除过失相抵的适用;作为例外,如果一方当事人故意的预见内容不包含另一方当事人的过失,则可以适用过失相抵;双方均存在故意时,如果可以互相预见到对方的行为,能够适用过失相抵。     

Assigning liability for pesticide spray drift

Conflicts over the use of pesticides causing damages to neighboring non-target crops led the United States Environmental Protection Agency (EPA) to propose a statement addressing pesticide spray drift. EPA is attempting to set out language that would clarify responsibilities for spray drift to offer protection to persons and properties harmed and minimize damages. Pesticide applicators expressed concern that a 2009 statement advanced a zero-risk, strict liability standard that would markedly increase liability for damages. EPA issued a revised statement in 2012 that provides a negligence standard of liability. From an investigation of liability rules employed to assign damages in pesticide drift cases, EPA's labeling statements are analyzed to discern their efficiency. The two alternative proposals present the opportunity for delineating a preferred liability rule that would enhance long-term economic performance of the agricultural production system by optimally addressing the externality between pesticide applicators and neighboring farms.     

Improvements in pesticide drift reduction technology (DRT) call for improving liability provisions to offer incentives for adoption

BackgroundThe widespread use of pesticides has contributed to increased crop productivity accompanied by problems of releasing toxic substances into the environment. One of the concerns is the release of pesticide spray drift that is carried to off-target properties causing injuries.ObjectivesIn 2016, the EPA released a generic verification protocol for pesticide drift reduction technology (DRT). With this protocol, applicators of pesticides can select verified products and equipment with the assurance that the technology will reduce the risk of spray drift damages, but there are inadequate incentives for its adoption.DiscussionDrift reduction technology can only reduce injuries to people, flora, and fauna if it is adopted by applicators. To address incentives for adoption, an analysis of liability provisions governing spray drift damages suggests that the jurisprudence governing liability might need updating to capture technological benefits. Two proposed legislative provisions are offered that would incorporate DRT into negligence law.ConclusionThrough the amendment of negligence law, liability provisions for pesticide spray drift damages can offer encouragement for applicators to adopt DRT.     

侵权法“过错证明负担规则”缺陷之矫正——基于比较法上的考察

各国侵权法规则适用于产品责任领域最突出的缺陷在于原告承受对被告过错的证明负担,如原告不能满足举证要求,将面临损害不能获得赔偿的风险。在现代化、不透明生产条件下,由原告证明被告的过错,不仅非常困难,而且违背公平理念。在保护消费者利益的目标引导下,各国对于侵权法规则缺陷的弥补均致力于减轻原告对被告过错进行证明的负担,例如英美的事实自证原则,德日的过错推定和举证责任倒置规则以及法国的缺陷即过错,均志在为遭遇举证困难缺陷产品的受害人提供证明之帮助。     

The effects on financial statements of the litigation cost rule in a civil action for negligence against the auditor

The litigation cost rule relates to which of the two parties in a civil lawsuit has to pay the legal costs. In those countries where the American system applies, each has to pay their own legal costs. In most other countries, the British system applies and the loser pays all the legal costs. By means of a single person decision-theoretic model, I examine the effects of this on auditing and financial statements under certainty and uncertainty conditions. Generally, the American system has the effect of restraining shareholders from suing unless they are able to cover their legal costs, thereby providing scope for under- or over-statements, depending on management’s wishes. This scope is denied under the British system and, as a result, audited financial statements will not be similarly biased.     

Risk,Liability, and Monopoly

The paper explores a monopolist's safety and output choices when there are potentially large-scale claims that can lead to firm insolvency. Analysis of a monopolized market yields different conclusions than models of rule choice where perfect competition or simple cost-minimization are assumed. The following are shown to be true when consumers do not internalize expected, uncompensated hazard costs: (1) potentially insolvent firms may make more efficient safety and output choices than fully capitalized firms and (2), for any level of capitalization, compliance with a negligence rule—where liabilities are removed—may in fact result in less output and safety than under strict liability, where hazard costs are at least partially internalized. When consumers fully discount risks, a negligence rule dominates strict liability because it allows for less costly, credible commitments to profit- and welfare-maximizing safety investments. The analysis demonstrates that the optimal legal system—including financial responsibility requirements—is particularly sensitive to market structure and the characteristics of firms’ risk reduction technology     

Auditor Liability and Business Investment*

We model a firm's investment decision, an auditor's effort‐rendering behavior, audit fees, and prices of the firms under two auditor liability rules: strict liability and negligence liability. We show that an auditor's effort level is socially optimal under strict liability, while it is not generally so under negligence liability. Furthermore, both the firm owner's expected benefit and the audit fee are higher under strict liability than under negligence liability. We define the legal error under negligence liability as the difference between the assessed audit effort (that is, the estimate of audit effort made by the court) and the actual audit effort and prove that the greater the variance of the legal error, the more incentive an auditor has to exert effort under negligence liability compared with strict liability. Finally, the number of investments being undertaken could be higher under strict liability because more firm owners are willing to hire auditors to go public.