Pub Date : 2015-09-16DOI: 10.4337/9780857931849.00017
J. Verret
This chapter, from Research Handbook on Insider Trading (Stephen M. Bainbridge ed., Edward Elgar 2013), considers the Stop Trading on Congressional Knowledge Act, or STOCK Act, passed by Congress by overwhelming margins in 2012 and signed by the President. The STOCK Act’s goal was to apply insider trading prohibitions contained in the Securities Exchange Act to members of Congress, their staffs, and the executive and judicial branches. This chapter will sketch the boundaries of application for the new STOCK Act, both with respect to government employees and to outside traders on political intelligence, and will explore some of the uncertainties all of these parties face in the wake of the STOCK Act. Two questions are considered. First, what unforeseen doctrinal challenges will be presented by the STOCK Act’s application of insider trading principles to members of Congress and government employees? Secondly, does the STOCK Act indirectly extend insider trading liability to outsiders trading on the basis of information that is obtained from members of Congress or government employees, and if not should the Securities and Exchange Commission (SEC) extend application to them? This chapter points to some serious doctrinal inconsistencies in the STOCK ACT’s application of insider trading doctrine under the Securities Exchange Act of 1934 to government employees.
本章来自《内幕交易研究手册》(Stephen M. Bainbridge编，Edward Elgar 2013)，考虑了2012年国会以压倒性优势通过并由总统签署的《国会知识停止交易法案》或《股票法案》。《证券法》的目标是将《证券交易法》中的内幕交易禁令适用于国会议员、他们的工作人员以及行政和司法部门。本章将概述新《股票法》的适用范围，既包括政府雇员，也包括政治情报方面的外部交易员，并将探讨所有这些各方在《股票法》实施后面临的一些不确定性。这里考虑了两个问题。首先，《证券法》将内幕交易原则适用于国会议员和政府雇员，会带来哪些不可预见的理论挑战?第二，《证券法》是否间接地将内幕交易责任扩大到根据国会议员或政府雇员获得的信息进行交易的局外人，如果不是，证券交易委员会(SEC)是否应将适用范围扩大到他们?本章指出了《证券法》在1934年《证券交易法》下对政府雇员适用内幕交易原则的一些严重的理论不一致之处。
{"title":"Applying Insider Trading Law to Congressmen, Government Officials, and the Political Intelligence Industry","authors":"J. Verret","doi":"10.4337/9780857931849.00017","DOIUrl":"https://doi.org/10.4337/9780857931849.00017","url":null,"abstract":"This chapter, from Research Handbook on Insider Trading (Stephen M. Bainbridge ed., Edward Elgar 2013), considers the Stop Trading on Congressional Knowledge Act, or STOCK Act, passed by Congress by overwhelming margins in 2012 and signed by the President. The STOCK Act’s goal was to apply insider trading prohibitions contained in the Securities Exchange Act to members of Congress, their staffs, and the executive and judicial branches. This chapter will sketch the boundaries of application for the new STOCK Act, both with respect to government employees and to outside traders on political intelligence, and will explore some of the uncertainties all of these parties face in the wake of the STOCK Act. Two questions are considered. First, what unforeseen doctrinal challenges will be presented by the STOCK Act’s application of insider trading principles to members of Congress and government employees? Secondly, does the STOCK Act indirectly extend insider trading liability to outsiders trading on the basis of information that is obtained from members of Congress or government employees, and if not should the Securities and Exchange Commission (SEC) extend application to them? This chapter points to some serious doctrinal inconsistencies in the STOCK ACT’s application of insider trading doctrine under the Securities Exchange Act of 1934 to government employees.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128911899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In March, amendments were introduced in Part One of the RF Civil Code concerning norms in the fi eld of the law of obligations; the conditions of recognizing foreign citizens to be highly qualifi ed specialists were defi ned in more precise detail; the rules for changing, in 2015, by agreement of the parties thereto, of the deadline for execution of a contract, the price of a contract, the unit price of goods, work, or service, their quantity, and the volume of contracts to be terminated in 2015; and the cases when a client is to be entitled not to stipulate, in the notification concerning the effectuation of a purchase deal, and (or) in a draft contract, the requirement that the execution of a contract for the supply of goods, performance of work, or rendering of services for government and municipal needs should be secured.
{"title":"Review of Economic Legislation in March 2015","authors":"I. Tolmacheva, Julia Grunina","doi":"10.2139/SSRN.2611260","DOIUrl":"https://doi.org/10.2139/SSRN.2611260","url":null,"abstract":"In March, amendments were introduced in Part One of the RF Civil Code concerning norms in the fi eld of the law of obligations; the conditions of recognizing foreign citizens to be highly qualifi ed specialists were defi ned in more precise detail; the rules for changing, in 2015, by agreement of the parties thereto, of the deadline for execution of a contract, the price of a contract, the unit price of goods, work, or service, their quantity, and the volume of contracts to be terminated in 2015; and the cases when a client is to be entitled not to stipulate, in the notification concerning the effectuation of a purchase deal, and (or) in a draft contract, the requirement that the execution of a contract for the supply of goods, performance of work, or rendering of services for government and municipal needs should be secured.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133341556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article reviews the jurisprudence that emerged during the first year of the new family law statute in British Columbia, Canada. The Family Law Act came into force in March 2013 and represented a major overhaul of family law in that province. The goal was to reflect social change, to place children first, and to keep families safe. The language of "custody" and "access" was changed to "parental responsibilities" and "parenting time". The best interests of the child test was defined in more detail. As well, family violence was dealt with explicitly, and norms on relocation were introduced, with burdens of proof depending on the extent to which parenting is shared. Despite the promising language in the statute, the first year of case law indicates some concerns about the early interpretation of the legislation in the courts. The article is co-authored with Matt Ledger.
{"title":"British Columbia's New Family Law on Guardianship, Relocation, and Family Violence: The First Year of Judicial Interpretation","authors":"Susan B. Boyd, Matthew Ledger","doi":"10.2139/SSRN.2636523","DOIUrl":"https://doi.org/10.2139/SSRN.2636523","url":null,"abstract":"This article reviews the jurisprudence that emerged during the first year of the new family law statute in British Columbia, Canada. The Family Law Act came into force in March 2013 and represented a major overhaul of family law in that province. The goal was to reflect social change, to place children first, and to keep families safe. The language of \"custody\" and \"access\" was changed to \"parental responsibilities\" and \"parenting time\". The best interests of the child test was defined in more detail. As well, family violence was dealt with explicitly, and norms on relocation were introduced, with burdens of proof depending on the extent to which parenting is shared. Despite the promising language in the statute, the first year of case law indicates some concerns about the early interpretation of the legislation in the courts. The article is co-authored with Matt Ledger.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123777827","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The aim of this legislation is to address some of the unfinished business related to the development of a consolidated legislative framework for higher education and research in Ireland. At present there are over half a dozen pieces of legislation related to higher education. These were drafted at different points in time and reflecting different policy objectives. The proposals contained in this Bill are in keeping with the "new public service management model" that the Irish implementation of the OECD Better Government programme adopted almost a decade ago.
{"title":"Higher Education and Research (Consolidation and Improvement) Bill 2014","authors":"C. Larkin, S. Barrett","doi":"10.2139/SSRN.2424779","DOIUrl":"https://doi.org/10.2139/SSRN.2424779","url":null,"abstract":"The aim of this legislation is to address some of the unfinished business related to the development of a consolidated legislative framework for higher education and research in Ireland. At present there are over half a dozen pieces of legislation related to higher education. These were drafted at different points in time and reflecting different policy objectives. The proposals contained in this Bill are in keeping with the \"new public service management model\" that the Irish implementation of the OECD Better Government programme adopted almost a decade ago.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"104 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122389768","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2014-01-15DOI: 10.1556/SOCEC.36.2014.3.2
Dániel Deák
To date, a series of non-traditional schemes have proliferated in the area of tax law, challenging the widely accepted principles of tax legislation. Lump-sum or presumptive taxes, redemption fees or tax amnesty, corrective taxes (bank levies), or confiscatory taxes (e.g., banker bonuses) can hardly be reconciled with the hard core of tax legislation that is established on the principles of equality and legal certainty. The present paper discusses these unorthodox types of public charges.
{"title":"Legislating Unorthodox Taxes: The Hungarian Experience","authors":"Dániel Deák","doi":"10.1556/SOCEC.36.2014.3.2","DOIUrl":"https://doi.org/10.1556/SOCEC.36.2014.3.2","url":null,"abstract":"To date, a series of non-traditional schemes have proliferated in the area of tax law, challenging the widely accepted principles of tax legislation. Lump-sum or presumptive taxes, redemption fees or tax amnesty, corrective taxes (bank levies), or confiscatory taxes (e.g., banker bonuses) can hardly be reconciled with the hard core of tax legislation that is established on the principles of equality and legal certainty. The present paper discusses these unorthodox types of public charges.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131844288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Creditors, though, are not regarded as the members of a company, yet the role they play in maintaining a company cannot be denied. They are the sole functionaries of the company, in one word. They provide credit to the company for running its business, as without finance a company holds no position to carry on its business for which it came into existence. By virtue of lending money by the creditors to the company, the company becomes debtor to the creditor and hence is under an obligation to take proper care of the interest of the creditors. Previously, there were no such enactments that provide relief to the creditors whose money is being involved in a company that fails. However, many a times it has been seen that the company after taking money from the creditors, vanished away without returning the due money to the creditor. Such activities render loss to the creditor. In order to curb such activities as well as to protect the rights of the creditors, there are many legislations that have been enacted by the Government. Through these legislations, it has become possible for the creditors to claim their money back from the company. Thus, in the present time, a company that is unable to repay back the due amount to the creditors, cannot take the excuse of being insolvent. In this paper we shall discuss the various ways by which protection is afforded to the creditors in a company and also look upon the various provisions that help the creditors in realising their credit.
{"title":"Protection of Creditors","authors":"D. Hazarika","doi":"10.2139/SSRN.2353238","DOIUrl":"https://doi.org/10.2139/SSRN.2353238","url":null,"abstract":"Creditors, though, are not regarded as the members of a company, yet the role they play in maintaining a company cannot be denied. They are the sole functionaries of the company, in one word. They provide credit to the company for running its business, as without finance a company holds no position to carry on its business for which it came into existence. By virtue of lending money by the creditors to the company, the company becomes debtor to the creditor and hence is under an obligation to take proper care of the interest of the creditors. Previously, there were no such enactments that provide relief to the creditors whose money is being involved in a company that fails. However, many a times it has been seen that the company after taking money from the creditors, vanished away without returning the due money to the creditor. Such activities render loss to the creditor. In order to curb such activities as well as to protect the rights of the creditors, there are many legislations that have been enacted by the Government. Through these legislations, it has become possible for the creditors to claim their money back from the company. Thus, in the present time, a company that is unable to repay back the due amount to the creditors, cannot take the excuse of being insolvent. In this paper we shall discuss the various ways by which protection is afforded to the creditors in a company and also look upon the various provisions that help the creditors in realising their credit.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126622304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article employs section 619 of the Dodd-Frank Act, popularly known as the Volcker rule, to examine agency level activity during the pre-proposal rulemaking phase – a time period about which little is known, despite its importance to policy outcomes. By capitalizing on transparency efforts specific to Dodd-Frank, I am able to access information on agency contacts whose disclosure is not required by the APA and, therefore, not typically available to researchers. I analyze the roughly 8000 public comment letters received by FSOC in advance of its study regarding Volcker rule implementation, and the meeting logs of the Treasury Department, Federal Reserve, CFTC, SEC, and FDIC prior to the Notice of Proposed Rulemaking. This analysis reveals significant public activity, but also a stark difference in investment by financial institutions versus other actors in influencing Volcker rule implementation. It also reveals a greater unity of interest among financial market participants than would be suggested by press reports and the provision’s legislative history. Finally, the data shed light on the efficacy of the notice and comment process as a means for federal agencies to engage the general public.
{"title":"Don’t 'Screw Joe the Plummer': The Sausage-Making of Financial Reform","authors":"K. Krawiec","doi":"10.2139/ssrn.1925431","DOIUrl":"https://doi.org/10.2139/ssrn.1925431","url":null,"abstract":"This article employs section 619 of the Dodd-Frank Act, popularly known as the Volcker rule, to examine agency level activity during the pre-proposal rulemaking phase – a time period about which little is known, despite its importance to policy outcomes. By capitalizing on transparency efforts specific to Dodd-Frank, I am able to access information on agency contacts whose disclosure is not required by the APA and, therefore, not typically available to researchers. I analyze the roughly 8000 public comment letters received by FSOC in advance of its study regarding Volcker rule implementation, and the meeting logs of the Treasury Department, Federal Reserve, CFTC, SEC, and FDIC prior to the Notice of Proposed Rulemaking. This analysis reveals significant public activity, but also a stark difference in investment by financial institutions versus other actors in influencing Volcker rule implementation. It also reveals a greater unity of interest among financial market participants than would be suggested by press reports and the provision’s legislative history. Finally, the data shed light on the efficacy of the notice and comment process as a means for federal agencies to engage the general public.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114483841","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-05-09DOI: 10.15388/TEISE.2012.0.108
Paulius Miliauskas
Nors akcininkų sutarties koncepcija bendruoju požiūriu nėra įtvirtinta Lietuvos Respublikos teisės aktuose, taciau tam tikrų specifinių akcininkų sutarcių teisinis reguliavimas yra nustatytas Civiliniame kodekse. Siame straipsnyje autorius detaliai nagrinėja Civiliniame kodekse numatytas balsavimo sutarties ir balsavimo teisių perleidimo sutarties sąvokas. Straipsnyje taip pat pateikiamas tokių sutarcių vertinimas ir jų sukeliami teisiniai padariniai. Although shareholders’ agreements in a broad sense are not defined in the laws of the Republic of Lithuania, the legislator has stipulated certain provisions regarding the specific types of shareholders’ agreements. The author examines in detail the concepts of voting agreement and transfer of voting rights agreement as they are stipulated in the Civil Code. Legal analysis of the mentioned agreements and legal consequences of entering into the agreements are also provided in the article.
{"title":"Kai Kurie Akcininkų Sutarčių Reglamentavimo Lyginamieji Aspektai: Lietuvos Respublika (Comparative Aspects of Regulation of Shareholders‘ Agreements: The Republic of Lithuania)","authors":"Paulius Miliauskas","doi":"10.15388/TEISE.2012.0.108","DOIUrl":"https://doi.org/10.15388/TEISE.2012.0.108","url":null,"abstract":"Nors akcininkų sutarties koncepcija bendruoju požiūriu nėra įtvirtinta Lietuvos Respublikos teisės aktuose, taciau tam tikrų specifinių akcininkų sutarcių teisinis reguliavimas yra nustatytas Civiliniame kodekse. Siame straipsnyje autorius detaliai nagrinėja Civiliniame kodekse numatytas balsavimo sutarties ir balsavimo teisių perleidimo sutarties sąvokas. Straipsnyje taip pat pateikiamas tokių sutarcių vertinimas ir jų sukeliami teisiniai padariniai. Although shareholders’ agreements in a broad sense are not defined in the laws of the Republic of Lithuania, the legislator has stipulated certain provisions regarding the specific types of shareholders’ agreements. The author examines in detail the concepts of voting agreement and transfer of voting rights agreement as they are stipulated in the Civil Code. Legal analysis of the mentioned agreements and legal consequences of entering into the agreements are also provided in the article.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"110 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133941521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The American Jobs Creation Act of 2004 (the Act) creates a temporary tax holiday that effectively reduces the U.S. tax rate on repatriations from foreign subsidiaries from 35% to 5.25%. Firms receive the reduced tax rate by electing to take an 85% dividends received deduction on repatriations in 2004 or 2005. This paper investigates the characteristics of firms that repatriate under the Act and how they use the repatriated funds. We find that firms that repatriate under the Act have lower investment opportunities and higher free cash flows than nonrepatriating firms. Further, we find that repatriating firms increase share repurchases during 2005 by approximately $60 billion more than nonrepatriating firms, an amount that cannot be explained by differences in earnings between the two groups of firms. This increase represents about 20% of the $291.6 billion repatriated by our sample firms under the Act.
《2004年美国就业创造法案》(The Act of 2004)设立了一个临时免税期，有效地将美国对外国子公司汇回国内的税率从35%降至5.25%。在2004年或2005年，企业通过选择扣除85%的股息来获得减税税率。本文研究了根据该法进行汇回的企业的特点以及它们如何使用汇回的资金。我们发现，与非回流企业相比，根据该法案进行回流的企业拥有更低的投资机会和更高的自由现金流。此外，我们发现，在2005年，回流公司比非回流公司增加了约600亿美元的股票回购，这一数额无法用两组公司之间的收益差异来解释。这一增长约占我们样本公司根据该法案汇回的2916亿美元的20%。
{"title":"Bringing it Home: A Study of the Incentives Surrounding the Repatriation of Foreign Earnings Under the American Jobs Creation Act of 2004","authors":"Jennifer L. Blouin, Linda K. Krull","doi":"10.2139/ssrn.925348","DOIUrl":"https://doi.org/10.2139/ssrn.925348","url":null,"abstract":"The American Jobs Creation Act of 2004 (the Act) creates a temporary tax holiday that effectively reduces the U.S. tax rate on repatriations from foreign subsidiaries from 35% to 5.25%. Firms receive the reduced tax rate by electing to take an 85% dividends received deduction on repatriations in 2004 or 2005. This paper investigates the characteristics of firms that repatriate under the Act and how they use the repatriated funds. We find that firms that repatriate under the Act have lower investment opportunities and higher free cash flows than nonrepatriating firms. Further, we find that repatriating firms increase share repurchases during 2005 by approximately $60 billion more than nonrepatriating firms, an amount that cannot be explained by differences in earnings between the two groups of firms. This increase represents about 20% of the $291.6 billion repatriated by our sample firms under the Act.","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"233 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128983887","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
French Abstract: Cet article envisage le traitement de l’hypotheque mobiliere universelle en droit civil quebecois, en le comparant a celui reserve a ce type de surete en common law canadienne et en droit civil francais, sous l’angle de son objet et de la protection du debiteur. L’objectif de cette etude est double. Le premier objectif, d’ordre descriptif et explicatif, se situe sur le plan de la technique du droit et cherche a eclairer le regime juridique des suretes reelles a l’aune des objectifs de politique legislative. Il s’agit de montrer ici que l’hypotheque universelle etant consideree comme particulierement dangereuse pour le debiteur, la generalite de l’objet de l’hypotheque a ete encadree par le legislateur quebecois, qui a tente de prendre en compte les imperatifs economiques d’acces au credit, tout en protegeant le consommateur, qui est la partie reputee la plus faible dans la relation creancier-debiteur. Cela a abouti a un fragile equilibre entre les interets des parties en presence, se manifestant par des dispositions relativement techniques qu’il convient de decrypter. Le second objectif de cette etude, d’ordre prescriptif, se situe sur le plan du droit compare et de la politique legislative. Nous soutenons qu’il devrait exister une correlation entre l’objet de la surete et la protection du debiteur : plus l’objet de la surete est large plus la protection du debiteur devient essentielle. Cet article propose le droit quebecois comme modele possible de reglementation des suretes mobilieres universelles.English Abstract: This article considers the Quebec civil law’s treatment of the universal movable hypothec from the perspectives of its object and of debtor protection, and compares it to the treatment given to corresponding securities in Canadian common law and French civil law. The article’s objective is twofold. Its first goal is descriptive and explanatory, and is a question of legal practice. The article aims to clearly describe the legal regime that applies to real securities in light of underlying legislative policy objectives. Because debtors view universal hypothecs as particularly dangerous, the Quebec legislature saw fit that the hypothec’s object should itself be taken into consideration in light of economic imperatives and the availability of credit, while the legislature simultaneously sought to protect consumers, who are presumed to be the weaker party in the creditor–debtor relationship. The result strikes a delicate balance between the parties’ interests, giving rise to a relatively technical set of legal provisions, which it is helpful to decrypt. The second objective of this study is both prescriptive and is a question of comparative law and legislative policy. We argue that a correlation must be established between a security’s object and the protection of debtors: the greater a security’s object, the more debtor protection becomes essential. This article suggests that the law of Quebec can serve as a potential mo
摘要:本文探讨了魁北克民法中普遍动产抵押的处理方法，并将其与加拿大普通法和法国民法中普遍动产抵押的处理方法进行了比较，从其目的和债务人保护的角度进行了比较。这项研究的目的是双重的。第一个目标是描述性和解释性的，涉及法律技术，并试图根据立法政策的目标阐明实际担保的法律制度。是这里表明动产作为普遍视为debiteur来说特别危险,标的generalite动产已通过该守则encadree quebecois曾试图考虑经济必要性向信贷,同时兴业六年,部分消费者reputee creancier-debiteur关系中最低的。这在有关各方的利益之间造成了一种微妙的平衡，表现为需要解密的相对技术性的规定。本研究的第二个目标是规范性的，涉及比较法和立法政策。我们认为，担保的目的与对债务人的保护之间应该存在相关性:担保的目的越广，对债务人的保护就越重要。本文提出魁北克法律作为通用证券监管的可能模式。英文摘要:本文从对象和债务人保护的角度考虑魁北克民法对普遍流动抵押的处理，并将其与加拿大普通法和法国民法对对应证券的处理进行比较。这篇文章的目的是双重的。它的主要目标是描述和解释，这是一个法律实践问题。本文的目的是根据立法政策目标，清楚地描述适用于实物证券的法律制度。因为续订view universal hypothecs有没有危险,需认真fit取消理事国saw that the hypothec’s object您本身一首be into强制性政策考虑in light of economic and the调节中的of credit, while to protect the理事国同时所寻找的consumer, who are presumed to be the weaker party in the债权人—债务人的关系。结果在缔约方利益之间形成了微妙的平衡，产生了一套相对技术性的法律条款，有助于破译。本研究的第二个目标既是规范性的，也是比较法和立法政策的问题。我们认为，必须在证券的目标和对债务人的保护之间建立一种相关性:证券的目标越大，对债务人的保护就越重要。本文认为，魁北克法律可作为规范普遍流动证券的一种潜在模式。
{"title":"L’hypothèque mobilière universelle : entre impératifs économiques et protection du débiteur (A Hypothec Affecting a Universality of Movables: Between Economic Imperatives and Debtor's Protection)","authors":"Yaëll Emerich","doi":"10.7202/1044865AR","DOIUrl":"https://doi.org/10.7202/1044865AR","url":null,"abstract":"French Abstract: Cet article envisage le traitement de l’hypotheque mobiliere universelle en droit civil quebecois, en le comparant a celui reserve a ce type de surete en common law canadienne et en droit civil francais, sous l’angle de son objet et de la protection du debiteur. L’objectif de cette etude est double. Le premier objectif, d’ordre descriptif et explicatif, se situe sur le plan de la technique du droit et cherche a eclairer le regime juridique des suretes reelles a l’aune des objectifs de politique legislative. Il s’agit de montrer ici que l’hypotheque universelle etant consideree comme particulierement dangereuse pour le debiteur, la generalite de l’objet de l’hypotheque a ete encadree par le legislateur quebecois, qui a tente de prendre en compte les imperatifs economiques d’acces au credit, tout en protegeant le consommateur, qui est la partie reputee la plus faible dans la relation creancier-debiteur. Cela a abouti a un fragile equilibre entre les interets des parties en presence, se manifestant par des dispositions relativement techniques qu’il convient de decrypter. Le second objectif de cette etude, d’ordre prescriptif, se situe sur le plan du droit compare et de la politique legislative. Nous soutenons qu’il devrait exister une correlation entre l’objet de la surete et la protection du debiteur : plus l’objet de la surete est large plus la protection du debiteur devient essentielle. Cet article propose le droit quebecois comme modele possible de reglementation des suretes mobilieres universelles.English Abstract: This article considers the Quebec civil law’s treatment of the universal movable hypothec from the perspectives of its object and of debtor protection, and compares it to the treatment given to corresponding securities in Canadian common law and French civil law. The article’s objective is twofold. Its first goal is descriptive and explanatory, and is a question of legal practice. The article aims to clearly describe the legal regime that applies to real securities in light of underlying legislative policy objectives. Because debtors view universal hypothecs as particularly dangerous, the Quebec legislature saw fit that the hypothec’s object should itself be taken into consideration in light of economic imperatives and the availability of credit, while the legislature simultaneously sought to protect consumers, who are presumed to be the weaker party in the creditor–debtor relationship. The result strikes a delicate balance between the parties’ interests, giving rise to a relatively technical set of legal provisions, which it is helpful to decrypt. The second objective of this study is both prescriptive and is a question of comparative law and legislative policy. We argue that a correlation must be established between a security’s object and the protection of debtors: the greater a security’s object, the more debtor protection becomes essential. This article suggests that the law of Quebec can serve as a potential mo","PeriodicalId":112302,"journal":{"name":"LSN: Legislation (Public Law) (Topic)","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123939225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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