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What is a Business Crime 什么是商业犯罪
Pub Date : 2007-11-16 DOI: 10.2139/SSRN.1029667
R. Booth
Criminal prosecution has been used with increasing frequency recently in connection with a variety of business failures and other financial offenses. Indeed, it appears that there are few such offenses that cannot be prosecuted criminally even though they also give rise to civil remedies. While some such offenses seem to be quite serious frauds, others seem to be as minor as getting the accounting rules wrong. Thus, the question addressed in this essay is how to define a business crime and what should be the proper role of criminal prosecution in connection with business offenses. I start with the proposition that we should criminalize conduct only when lesser remedies do not work to deter the offense. I then describe the array of private civil remedies available, ranging from simple compensatory damages to punitive damages to class actions and derivative actions and find that there are few business offenses that cannot be well addressed by these devices. I conclude that as a general matter private civil remedies are much more efficient at addressing business and financial crimes. The expansion of criminal prosecution may be due to some extent to problems with the way civil remedies work in practice, but for the most part it is difficult to explain except as a result of failure to understand the role of criminal law and to define financial crimes with any precision.
最近,刑事起诉越来越频繁地用于各种商业失败和其他金融犯罪。事实上,似乎很少有这种罪行不能被刑事起诉,即使它们也引起民事补救。虽然有些违法行为似乎是相当严重的欺诈行为,但其他行为似乎与会计规则错误一样轻微。因此,本文讨论的问题是如何定义商业犯罪,以及与商业犯罪有关的刑事起诉的适当作用是什么。我首先提出的主张是,只有当较少的补救措施无法阻止犯罪时,我们才应该将行为定为刑事犯罪。然后,我描述了一系列可用的私人民事救济,从简单的补偿性损害赔偿到惩罚性损害赔偿,再到集体诉讼和派生诉讼,并发现很少有商业犯罪不能通过这些手段得到很好的解决。我的结论是,一般而言,私人民事救济在处理商业和金融犯罪方面要有效得多。刑事起诉的扩大可能在某种程度上是由于民事救济在实践中的工作方式存在问题,但在大多数情况下,除了未能理解刑法的作用和无法精确定义金融犯罪的结果外,很难解释。
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引用次数: 8
Information Policy for the Library of Babel 巴别塔图书馆的信息政策
Pub Date : 2007-09-08 DOI: 10.31228/osf.io/7ctre
James Grimmelmann
The image of Borges's Library of Babel, which contains all possible books, is haunting and suggestive. This essay asks what we would do if we were advising a Federal Library Commission on how to deal with the Library's vast holdings and overwhelming disorganization. This thought exercise provides a set of sensible principles for information policy in an age of extreme informational abundance.
博尔赫斯的巴别塔图书馆包含了所有可能的书籍,这一形象令人难以忘怀并具有启发性。这篇文章的问题是,如果我们建议联邦图书馆委员会如何处理图书馆庞大的馆藏和压倒性的混乱,我们会怎么做。这种思维练习为信息极度丰富的时代的信息政策提供了一套明智的原则。
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引用次数: 4
The Duty to Creditors Reconsidered - Filling a Much Needed Gap in Corporation Law 重新考虑债权人义务——填补公司法急需的空白
Pub Date : 2006-11-01 DOI: 10.2139/SSRN.886772
R. Booth
The most fundamental question of corporation law is to whom does the board of directors of a corporation owe its fiduciary duty. Recently, the question has tended to be whether and under what circumstances the board of directors has the duty to maximize stockholder wealth. But if a corporation is insolvent (or close to it), business decisions designed to maximize stockholder wealth may result in a reduction of creditor wealth. Although the conventional wisdom is that creditors must protect themselves by contractual means, there is a substantial body of case law that says that creditors can assert claims sounding in fiduciary duty. Until recently, most such decisions have come from the bankruptcy courts. The state courts, who have primary jurisdiction with regard to the interpretation of corporation law, have had few opportunities to say otherwise. But in Credit Lyonnais Bank Nederland v. Pathe Communications (1991) and Production Resources Group v. NCT Corporation (2004), the Delaware Court of Chancery confirmed that the protections of fiduciary duty extend to creditors (in addition to stockholders) - at least when a corporation is in fact insolvent and possibly when it may be rendered so by the business decision in question - on the theory that the board of directors ultimately has the duty to maximize the value of the firm as a whole. These unfortunate decisions have led creditors and commentators to argue for a wholly new body of creditor rights and have encouraged further loose talk from the bankruptcy courts who must apply state law in this difficult setting. The fallacy inherent in extending the protections of fiduciary duty to creditors is that stockholders themselves enjoy no remedy except in situations in which the corporation is for sale - a situation in which there is little danger of harm to creditors. The board of directors is otherwise under no enforceable duty to maximize stockholder wealth. And the CEO typically has a strong incentive to ensure the survival of the firm. In situations in which the board of directors has failed to maximize stockholder wealth, the stockholders are protected by the market for corporate control rather than a legal remedy. Under the business judgment rule, the stockholders cannot challenge such decisions in court. Neither should the creditors be able to do so. Thus, even though creditors might favor a rule that favors them when the board of directors is tempted to bet the farm on a risky business strategy, they have no need for a remedy. Fortunately, the cases in which creditors have prevailed up to now are cases in which they should have prevailed anyway under fraudulent transfer law. But the law would be better served if the courts made it clear once and for all that fiduciary duty is about the stockholders and no one else.
公司法最根本的问题是公司董事会对谁负有信义义务。最近,问题趋向于董事会是否以及在什么情况下有责任使股东财富最大化。但如果一家公司资不抵债(或接近资不抵债),旨在使股东财富最大化的商业决策可能会导致债权人财富的减少。尽管传统观点认为债权人必须通过合同手段保护自己,但有大量判例法表明,债权人可以主张听起来像是信义义务的主张。直到最近,大多数此类裁决都是由破产法庭做出的。州法院对公司法的解释具有主要管辖权,几乎没有机会说别的。但在里昂信贷银行荷兰诉代通讯(1991)和生产资源集团诉NCT公司(2004),特拉华州法院大法官确认受托责任扩展到债权人的保护(除了股东)——至少当一个公司实际上是资不抵债时,可能会呈现这样的商业决策问题——理论,最终董事会有义务公司作为一个整体的价值最大化。这些不幸的决定导致债权人和评论人士主张建立一个全新的债权人权利体系,并鼓励破产法院发表进一步的宽松言论,破产法院必须在这种困难的情况下适用州法律。将信义义务的保护扩大到债权人的内在谬误在于,股东自己除了在公司待售的情况下——在这种情况下,债权人几乎没有受到损害的危险——无法得到补救。在其他方面,董事会没有强制义务使股东财富最大化。首席执行官通常有强烈的动机来确保公司的生存。在董事会未能实现股东财富最大化的情况下,股东受到公司控制权市场的保护,而不是法律救济。根据商业判断规则,股东不能在法庭上对这些决定提出异议。债权人也不应该这样做。因此,即使债权人可能会赞成一项有利于他们的规则,当董事会被诱惑将全部家当押在高风险的商业策略上时,他们也不需要补救措施。幸运的是,到目前为止,债权人胜诉的案件是根据欺诈性转让法他们无论如何都应该胜诉的案件。但是,如果法院一劳永逸地明确信托义务是针对股东的,而不是其他任何人,那么法律将更好地发挥作用。
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引用次数: 1
The Hypocrisy of the Milberg Indictment: The Need for a Coherent Framework on Paying for Cooperation in Litigation 米尔伯格起诉的虚伪:需要一个连贯的框架来支付诉讼中的合作
Pub Date : 1900-01-01 DOI: 10.2139/SSRN.955952
Bruce H. Kobayashi, Larry E. Ribstein
The indictment of the Milberg, Weiss firm and two of its named partners for allegedly illegal payments to lead plaintiffs stands at the intersection of important recent developments in both the expanding criminalization of corporate conduct and the federalization of corporate law. Many have noted the irony and hypocrisy of the Milberg firm's alleged use of illegal tactics to prosecute corporate illegality. However, the more important hypocrisy is that Milberg's prosecutors are essentially paying the same witness - Vogel - that Milberg is being prosecuted for paying. This case illustrates the need to need to develop coherent standards regarding payments to litigants and witnesses. These standards should take account of the incentive effects of the payments, rather than being based on a desire to discourage or encourage particular types of actions.
米尔伯格魏斯律师事务所及其两名具名合伙人涉嫌向主要原告支付非法款项,这一指控反映了企业行为刑事化和公司法联邦化的重要最新发展。许多人注意到米尔伯格律师事务所涉嫌使用非法手段起诉公司违法行为的讽刺和虚伪。然而,更重要的虚伪是,米尔伯格的检察官实际上是在付钱给同样的证人——沃格尔——米尔伯格因为付钱而被起诉。这一案件表明,有必要就支付给诉讼当事人和证人的款项制定一致的标准。这些标准应考虑到付款的激励作用,而不是基于阻止或鼓励特定类型行动的愿望。
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引用次数: 3
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Journal of Business and Technology Law
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