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  • 法与经济学国际研讨会论文摘要
  • 国际会议经济增长的动力:法和经济学的视角参会论文摘要

    Collections of Abstracts of Papers Presented to the International Conference onThe Forces of Economic Growth: A Law and Economics Perspective


    Panel1: Contract, Corporate Governance, Finance


    No.1 TitlePromoting Innovation: The Law of Publicly Traded Corporations


    AuthorProfessor Merritt B. Fox, Columbia Law School




    AbstractInnovation is critical to improving a society’s economic welfare. Law and public policy more generally, can help promote innovation in a variety of ways. The appropriate level of protection for intellectual property and the funding of education and basic research are examples of ways that have received considerable attention. The focus of this paper, however, is the impact on innovation of the securities and corporate law relating to publicly traded corporations. While economic analysis has dominated U.S. corporate and securities scholarship in recent decades,static efficiency has been the primary concern. The promotion of welfare enhancing innovation—dynamic efficiency—has attracted little study.

    This dearth of research is not surprising because corporate and securities laws applicable to public corporations appear at first glance to have little to do with innovation. Further examination, though, suggests that they play a much larger role. These laws help shape the way decisions are made within firms and in the larger financial markets in which they operate that determine which proposed real investment projects are, and are not, implemented.

    Making the best choices and promoting innovation are closely related. Unless an investment project proposal is innovation based, it is unlikely to be highly promising. Non-innovation based project proposals are unlikely to have above normal expected returns. In contrast, projects with unusually high returns are very likely to be innovation based. Theses are the ones that can contribute to growth. This paper addresses the question of how law, through its influence on the behavior of a variety of actors–investment project proponents, persons working in established firms and in financial intermediaries, and individual investors–can make the overall system more sensitive to the potential of promising innovation based investment project proposals


    No.2 TitleFinancial Innovation and the Puzzles in Lawsuits Related to the Listed Corporations


    AuthorProfessor Shi Tiantao, School of Law, Tsinghua University


    AbstractIn China’s capital market, new financial instruments such as futures, options, and shorting and margin financing, prosper the financial markets, influence the capital structures and financing channels of the listed corporations, and bring new problems and concerns in related lawsuits. In this paper we will briefly address the following three problems: the status of bond investment versus that of the equity investment in relation to fiduciary duty; how to protect the interests of the holders of derivatives in securities litigation; the influence of shorting and margin financing transactions on the parties in securities litigation.


    No.3 TitlePrivate Equity Funds in the Age of Crisis: Private Ordering vs. Mandatory Law?


    AuthorDoctor Rainer Kulms,Max Planck Institute


    AbstractThe private contracting aspects of fund investment have come to mesmerise the current policy debate. It is assumed that the financial crisis has its roots in undue reliance on private order­ing. Closer inspection suggests that any regulatory policy on investment funds will have to address two problems, the maintenance of corporate governance standards within the funds and the capital market aspects of private investment. This paper explores the interface be­tween company law and capital market regulations for private equity funds. The comparative survey includes the United Kingdom, Luxembourg, Switzerland, France and Germany, as­sessing the competitive impact of the English Limited Partnership on continental European jurisdictions.


    No.4 TitleAn Economic Assessment of the Extinctive Prescription Rules in the Principles of European Contract Law


    AuthorProfessor Tze-Shiou Chien, College of Law, National Taiwan University


    AbstractLaw has its time dimension. The legal doctrine of extinctive prescription would entitle the debtor to refuse the performance demanded by the creditor as a result of lapse of time. The practice of this doctrine, especially concerning its scope of application and the length of prescription period, however, is widely various among legal systems. To trim and systematize the law, the Commission on European Contract Law recently published a codified prescription regime in its Principles of European Contract Law Part III (hereinafter as the Principles). Due to its comprehensive comparative law study and simplicity, for sure, the Principles would become the reference point if not the model for application or reform in individual legal systems. Germany’s recent legal reform was just one example. This is not to be surprised because the prescription rules of the Principles basically are sound and sensible. The underlying policy considerations put forward by the Principles, however, are imprecise and sometimes conflicting. There is a gap between theory and text. This paper, based on an economic analysis, would argue that countering the imbalance of depreciation rate of evidence between the debtor and the creditor is the only foundation of the doctrine of extinctive prescription.


    No.5 TitleThe Institutions of Property Rights and the Capital Markets in China: A Perspective from Law and Economics


    AuthorProfessor Liu Jipeng, RCLE, CUPL


    Abstract:As a leading role inChina’seconomic reform, the State-Owned Enterprises (SOEs) have experienced great transition of being transformed into joint stock companies with modern corporate governance structure. In this process, however, some top managers strip the assets of the companies, tunnel firm’s value out, and even usurp the ownership of these SOEs. In current China, the ownership of shares are centralized in both state-owned listed companies where state-holding shares dominate and private listed companies where private families keep control, with a consequence of a less liquid capital market, dispersed public shareholdings, and neglected interests of minority shareholders. Therefore, the reform of the property rights system should not just seek the efficiency by transferring state owned property to the entrepreneur elites without considering the social equity, but should take the tolerance and judgment standards of the society in consideration and try to harmonize efficiency and equity and coordinate economic growth with social stability.


    Panel 2: Administrative Law, Regulation, and Risk Distribution


    No.6 TitleCost-Benefit Analysis and Feasibility Analysis: A Comparison of Two Approaches to Regulation


    AuthorProfessor Eric A. Posner, University of Chicago Law School


    AbstractFeasibility analysis, a method of evaluating government regulations, has emerged as the major alternative to cost-benefit analysis. Although regulatory agencies have used feasibility analysis (in some contexts called “technology-based” analysis) longer than cost-benefit analysis, feasibility analysis has received far less attention in the scholarly literature. In recent years, however, critics of cost-benefit analysis have offered feasibility analysis as a superior alternative. We advance the debate by uncovering the analytic structure of feasibility analysis and its normative premises, and then criticizing them. Our account builds on two examples of feasibility analysis, one conducted by OSHA and the other by EPA. We find that feasibility analysis leads to both under- and over-regulation, and we conclude that it lacks a normative justification and should have no place in government regulation.


    No.7 TitleThe Impact Assessment and Cost-Benefit Analysis of Law: The Practices in China


    AuthorProfessor Xi Tao, RCLE, CUPL


    AbstractThe impact assessment and the cost-benefit analysis are the two basic methods to evaluate law before and after legislation. Without these methods, legal rules may face enforcement problems and difficulties in observance and compliance because of their inherent abstract and general nature. The application of these methods may help to settle disputes which have lingered in China’s legislative activities in recent years, such as the balance between administrative license and market faliure inAdministrative License Law, the influence of the provisions of market share standard and concentration of business operator on competition inAntitrust Law, and the priority of different debtors inBankruptcy Law. In 2004, for the first time in China, the State Council stipulated that the method of cost-benefit analysis should be attempted in administrative rules making. In 2006, some departments of government and some province governments started to research on the impact of law before and after legislation, and on how to establish rules and institutions of the cost-benefit analysis. It will be a great institutional innovation in China to apply the impact assessment and cost-benefit analysis into law making as principles, procedures, and methods.


    No.8 TitleCoordinating Sanctions in Tort


    AuthorProfessor Kyle D. Logue, University of Michigan Law School


    AbstractThis Article begins with the standard law-and-economics account of tort law as a regulatory tool, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this standard (albeit not universally accepted) picture of tort law, the Article asks the question how should tort law adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of a cost-internalizing Pigovian tax), which presumably already addresses any negative externalities associated with the activity, what regulatory role remains for tort law? The answer: sometimes there is a regulatory role that tort law can play, sometimes not, depending on the situation. For example, if the non-tort regulatory standard is already “fully optimizing,” in the sense that the regulatory standard (a) sets both an efficient floor and an efficient ceiling of conduct and (b) is fully enforced by the regulatory, then tort law should be fully displaced, in the sense that no tort remedy should be available. If, however, the regulatory standard is only “partially optimizing” (for example, it is only an efficient minimum or efficient floor or it is only partially enforced), then tort law continues to have an important regulatory role. This framework can be used to explain how such tort doctrines as negligence per se and regulatory compliance should be applied. It also helps to explain recent federal preemption cases involving overlapping tort and regulatory standards. In addition, the framework produces insights for how tort law might efficiently be adjusted to coordinate with overlapping social norms, which are also considered within the L&E tradition to be a form of regulation.


    No.9 TitleRethinking the Inspection Exemption of Food: A Perspective from Risk Governance


    AuthorProfessor Shen Kui, Peking University Law School


    AbstractThe system of inspection exemption on food, an extension of the system of inspection exemption on products, collapsed after the milk powder scandal in the 2008. In fact, the system of inspection exemption was designed with an initial intention of rewarding winners of competition, providing the consumers necessary information, lessening bureaucratic burdens on enterprises, and getting ride of local protectionism. However, the system of inspection exemption gradually revealed its flaws in practice. Therefore, there broke out fierce debates over the performance and legitimacy of the inspection exemption, but no consensus had been reached.. With the help of the risk theory, we can find the fundamental flaws of the inspection exemption: it ignores the proper priority of the risks related to food industry, disregards the social construction of food risks, and neglects the due arrangements of the decentralization and the composition in the risk governance system. Theses failures make the system of inspection exemption illegitimate in a risk society, no matter how its performance is.


    No.10 TitleThe Regulations of Pension Funds


    AuthorMr. Grayson Clarke, EU Commission


    AbstractThe thrust of regulation has been to strengthen the oversight of defined benefit pension fund operations particularly in circumstances of forecast actuarial deficit and transfers of ownership and on the financial stability of financial providers. Much less attention has been focused on defined contribution schemes which now account for the vast majority of new participants in the occupational and private pension market. Similarly most regulatory focus has been on the accumulation phase and much less on the de-cumulation phase in the conversion of funds to annuities. The financial crisis has exposed serious weaknesses in the design of DC schemes which may now be subject to additional regulation. Nevertheless ‘regulatory creep’ poses its own dangers. Government mandated pension guarantee arrangements such as the UK’s Pension Protection Fund (PPF) may not only create the danger of moral hazard among pension funds but may also involve large financial support as lender of last resort even if the Government is not a direct guarantor.


    Panel 3 Law, Transition, and Economic Development (1)


    No.11 Title“Systemic Failures”and New Standards for Global Economic Development


    AuthorProfessor Gilberto Antonelli, Faculty of Law, University of Bologna


    No.12 TitleLegislative Games in China


    AuthorProfessor Li ShuguangRCLE, CUPL


    AbstractAfter thirty years of reform and opening up, diverse interest groups have emerged from the old system of centralized interest representation in China. The departments of the government, scholars, medias, social organizations, and the large scale enterprises, representing different interest groups, participate in the legislative activities. The more kinds of interests the legislation is related to, the more complex the legislative game is, and then the longer the time to arrive at conclusion. Sometimes, the complexity of the interests even results in the abortion of the legislation. Therefore, we should balance and harmonize the powers of different interests in the legislative game.


    No.13 TitlePlanning and Economic Growth


    AuthorProfessor Daniele Senzani,Faculty of Law, University of Bologna


    No. 14 TitleLaw and Economic Growth in China: The Experience from Guangdong Province


    AuthorProfessor Zhou LinbinSchool of Law, Sun Yat-sen University


    AbstractBased on the practices of economic reform and legislative activity in Guangdong Province, China, this paper tries to examine the special case of the relationship between law and economic growth in China, and contribute to understand China’s economic miracle from the law and economics perspective.


    No.15 TitleAuction Theoretical Contributions to China’s Public Procurement Regime

    作者:斯特凡· E.魏沙尔博士,马斯特里赫特大学

    AuthorDr. Stefan E. WeishaarMaastricht University


    AbstractBid rigging conspiracies have for long been recognized as significantly inflating public expenditures. This paper compares industrial economic and auction theoretic insights regarding bid rigging conspiracies and finds that, given the specific scope of the procurement laws, there is a strong role for auction theoretic insights to bid rigging in Public procurement laws. It subsequently examines how the Chinese Public procurement legislation compares to these law and economic insights in the areas of cartel formation and cartel stability. It is found that the Chinese legal regime does facilitate both the formation and stabilization of bid rigging cartels.


    No.16TitleThe Enforcement of Chinese Antitrust Law and the Structure of Chinese Competition Policy


    AuthorProfessor Huang Yong, Law School, University of International Business and Economics,


    AbstractSince the reform and opening up in 1978, China has successfully transformed itself from a planned economy to a market economy. The antitrust law, the constitution of market economy, constructs a legal foundation for the newly established market economy in China. China’s antitrust law, although elementary and sketchy, reflects the national competition policy in the current development stage. A deep understanding of current competition policy will help us to appreciate the objectives of China’s antitrust law, namely to lay the foundation for market economy, to control the excessive power of the government, and to safeguard the national security,


    Panel 4 Law, Transition, and Economic Development (2)


    No.17TitleChina’s Land Market Auctions: Evidence of Corruption?


    AuthorProfessor Cai Hongbin, Guanghua School of Management, Peking University


    AbstractThis paper studies the urban land market in China in 2003—2007. In China, all urban land is owned by the state. Leasehold use rights for land for (re)development are sold by city governments and are a key source of city revenue. Leasehold sales are viewed as a major venue for corruption, prompting a number of reforms over the years. Reforms now require all leasehold rights be sold at public auction. There are two main types of auction: regular English auction and an unusual type which we call a “two stage auction”. The latter type of auction seems more subject to corruption, and to side deals between potential bidders and the auctioneer. Absent corruption, theory suggests that two stage auctions would most likely maximize sales revenue for properties which are likely to have relatively few bidders, or are “cold”, which would suggest negative selection on property unobservables into such auctions. However, if such auctions are more corruptible, that could involve positive selection as city officials divert hotter properties to a more corruptible auction form. The paper finds that, overall, sales prices are lower for two stage auctions, and there is strong evidence of positive selection. The price difference is explained primarily by the fact that two stage auctions typically have just one bidder, or no competition despite the vibrant land market in Chinese cities.


    No.18 TitleChinaas a Regulatory State


    AuthorProfessor Du Julan, Department of Economics, Chinese University of Hong Kong

    摘要:市场经济模式各有不同,区别在于经济中政府权力相对于市场的强度,并可作如下排列:从私人秩序到通过法庭的私人诉讼,再到管制型国家(格雷泽,施莱弗, 2002,,2003:詹科夫等,2003)。本文通过使用对中国3073家私人企业的调查资料,构建了量化政府权力相对于市场强度的指数。这一指数在中国各个地区都不相同。我们发现,政府权力更强大地区的企业绩效更好,这表明管制型国家模型也适用于中国经济。

    AbstractMarket economy models differ in the degree of the power of government vis-a- vis market in the economy, ranging from private orderings, to private litigations through courts, and regulatory state (Glaesernd Shleifer, 2002, 2003; Djankov et al., 2003). This paper, by using data from a survey of 3,073 private enterprises in China, constructs an index to quantify the power of government vis-a- vis market, which varies across China‘s regions. It is found that enterprises located in regions with greater powers of government vis-a- vis market enjoy better performance, suggesting that regulatory state is an appropriate model of a market economy for China.


    No. 19 TitleThe Selective Protection of Property Rights and the Economic Growth in China


    AuthorProfessor Wei Jian, School of Economics, University of Shandong,


    AbstractAccording to the so-called “China Mystery”, Chinese economy experiences long term growth in the recent 30 years while the protection of property rights is relative weak, a puzzle that contradicts the new institutional economics’ basic proposition that good protection of property rights is the foundation of economic growth. However, “China Mystery” is in fact a pseudo-proposition, because China adopts a unique method to protect the property rights to meet the demand of economic growth in the recent 30 years, by which we mean the selective protection of property rights. Centering on economic growth, China provides special protection to the kinds of property rights that are conducive to economic growth in the particular development stages. Therefore, to transform China’s economic growth mode, we should change the asymmetric protection of different property rights, and protect all kinds of property rights equally.


    No.20 TitleHow to Clarify and Protect the Land Property Rights in Rural China: the Basic Principles


    AuthorProfessor Ke Huaqing, School of Law, CUPL


    AbstractWhat we have seen in rural China is that economically or politically advantaged groups are favored because the property rights are ambiguous or poorly protected. Following a so called abduction mode, we believe that the reform of land property rights in rural China should center on appropriate goals and take the constraints of reform into consideration, and should be tested by actual results. There are three basic methods to clarify the land property rights in rural China, namely improving the current collective ownership, privatizing rural land completely, or nationalization. Which one should be chosen depends on the goal of the reform. Given the objective of common prosperity and stable economic growth, the optimal method should be improving the current collective ownership by identifying the real owners, clarifying the bundle of property rights, strengthening the usufructuary rights of peasants to rural land, and absorbing some innovations in practice into institutional design. In the process of China’s urbanization, problems related to land transactions and land takings challenge the protection of property rights, which calls for more protection on rural land by making use of the mixture of property rules, liability rules, and inalienability rules.


    Panel 5 Law, Transition, and Economic Development (3)


    No 21 TitleLegal Change and Economic Performance: An Assessment


    AuthorProfessor Gianmaria Ajani, University of Torino, Faculty of Law


    AbstractWithin the Western legal tradition, norms are set through two different procedures: reiteration (case law) and parliamentary law-making.Accordingly, those empowered to change the law are the judges and the legislators.A different perspective can be taken leaving aside the standard illustration of legal change and moving towards an analysis of theprocesswhich leads to the final result of the legal reform.Within a relevant sector of a legal system the standard illustration of legal change we were used to seems to be overcome by a new mode, which grounds legitimacy for law-making rather in a technical appraisal of the necessity of a peculiar set of regulations. We can call this mode “functionalism”.


    No. 22 Title: The Economic Analysis of Social Insurance Law


    Author: Professor Hu Jiye, RCLE, CUPL


    Abstract:As part of its far-reaching reform, China hascommenced the reform of social security institutions by combiningasocial poolwithindividual accountsin the mandatory pension system. Based on the law and economic approach, this paper focuses on three key fields of the draft of social insurance law which had been deliberated twicebytheNational People’s Congress.First,theories presented by someNobel laureates in economics-Samuelson’s exact consumption loan model and Modigliani’s life cycle hypothesis- will be usedtoanalyze the Pareto improvementin thetransitionfromthe system ofpay-as-you-go to thecombination of asocial poolwithindividual accounts in China. Theenactment ofsocial insurance law willcodifythe pension framework whichwas establishedin 1997 by the State Council.Second, the law of large numbers theory in insurance economicswill be employed to argue thatpooling lies at the core of the redistributive and risk-sharing elements of pensions. Given the size and diversity of China, national pooling of the mandatory pension schemes is particularly important.There should be a single set of regulations on mandatory pensions, preferably in the form of legislation that is enforceable. The rules on contributions and benefits should be set centrally by formula.Finally,drawinglessons fromthe legal rules ofother countries on the social security funds,the economic theory of market failurewill be usedtoexplore how toestablisha singleuniform legal framework within which social surety funds will be supervised and regulated efficiently.


    No.23 TitleLawand Economics Analysis of Urban Housing Demolition and Relocation in China


    Author: Professor Feng Yujun, School of Law, Renmin,Universityof China



    AbstractIn recent years, the problem ofchaiqian(“Demolition and Eviction/Relocation”) , has become a very controversial issue in Urban China.The disputes frequently involve various governmental bodies, private developers, the courts, construction companies, and the general public. Conflicts between private rights and public interest, between individual interests, commercial interests and the political power, are becoming increasingly fierce and have raised concerns about social stability. Those well-connected developers try to gain huge illegal profits. Some forced eviction cases have violated basic human rights, but the evictees still lack legal redress. Through an examination of the current legal framework in China and the policy changes that have been tried to deal with the issues associated with demolition and relocation, the author uses the method of law and economics and two kinds of game theory model to directly illustrate situations encountered in practice and theProperty lawLaw of the People’s Republic of China on Administration of the Urban Real Estatethe City Planning Law of the People’s Republic of ChinaespeciallyRegulation on the Administration of Urban House Demolishment and Relocationand other national laws and regulations. Finally, the author describes the current difficulties in legal solution forrelocationdisputes, and proposes some possible solutions and recommendations.


    No.24 TitleDeterminants of Economic Growth: From Harrod-Domar to LLSV


    AuthorProfessor Guangdong Xu, RCLE, CUPL


    AbstractThis paper briefly reviews the theory of economic growth, with special attention to the role of legal institutions. Over the past several decades, a great number of scholars have devoted themselves to exploring the determinants of growth and provided alternative theories on potential sources of cross-country income differences. As far as it goes, the proposition that institutions matter seems to receive most support from the evidence across both time and space, and thereby has become a consensus among scholars. Compared with other institutions, legal institutions exert a more important influence on economic performance in modern economy. The interaction between law and economic outcomes has been extensively studied since 1960s, within the discipline of law and economics. Before 1990s, scholars of law and economics were concerned mostly about how legal rules influence individuals’ incentives on micro-level, instead of relating different level of economic growth to the differences of legal rules on macro-level. This situation has been dramatically changed since the end of 1990s under the stimulation of a series of cross-country econometric researches conducted by four economists, La Porta, Lopez-de-Silanes, Shleifer, and Vishny (LLSV). LLSV’s seminal articles have resulted in an explosion of studies on the subject of the relationship between legal institutions and economic growth, some of which confirm their conclusion on the superiority of common law over civil law, while others question LLSV’s theory on various grounds. In brief, the primary contribution of LLSV is rather an appeal to inquire more deeply into the role of legal rules in economic growth than a convincingly advocacy of the excellence of common law.


    TitleEconomy and Government of the Territory


    AuthorProfessor Antonio Carullo,Faculty of Law, University of Bologna


    AbstractFirst,it has to recognize that there is a "territorial dimension" of development and from it the public policies of programming, the relationships between economic system and financial system, and the realization of infrastructures or the location of productive activities, cannot be separated. As we can see, the connection between institutions, economy and territory plays an important role to strengthen the competitiveness or the decline of an economy. The duty of the jurist, in a law and economics perspective, is precisely in understanding the dynamics of the different disciplines related one to another in the pursuit of objectives.

    In the following text, we will discuss : (2)the implementation of public policies: the urban planning instruments in local government of economy and the relationship with the economic, productive, social and employment development. (3)The relationship between Community law and National law: the principle of competition/concourse prevails over the special national discipline. (4)The point of arrival: the balance between economy and government of the territory.