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Misrepresentation, Involuntary Delisting and Investor Protection - The Dilemma of Dislocated Regulation on Chinese Securities Market 虚假陈述、非自愿退市与投资者保护——中国证券市场错位监管的困境
Pub Date : 2016-06-01 DOI: 10.2139/ssrn.3007037
Haifan Hu
On 21 March 2016 the Shanghai Stock Exchange issued its first ever decision to compulsorily delist a company on the ground of seriously breaching the disclosure norms. It is the first case applying the China Securities Regulatory Commission’s 2015 delisting regulation and has substantial implications for the future operation of the delisting system in China. The effectiveness of the delisting system, particularly in regard to the issue of misrepresentation, largely depends on the functioning of the Supreme People’s Court’s Judicial Interpretation issued in 2003. By virtue of examining the legislative purpose in the context of specific procedural devices adopted in the 2003 Interpretation, this article identifies the unfortunate status of investors and the causes thereof under China’s political and economic circumstances. It argues that the delisting system, which is built upon the unsatisfactory regime of investor protection, has put investors in a more disadvantageous position facing increased uncertainty and unpredictability. By going through crucial statutory provisions in the 2003 Interpretation and the delisting regulation, this article illustrates how the judiciary, the administrative authorities and the investors interact on this uneven playing field of stock market.
2016年3月21日,上海证券交易所首次以严重违反信息披露规范为由强制退市。这是首例适用中国证监会2015年退市规定的案例,对中国退市制度的未来运作具有重大影响。除名制度的有效性,特别是在虚假陈述问题上的有效性,在很大程度上取决于2003年最高人民法院发布的司法解释的功能。本文通过考察2003年《解释》所采用的具体程序手段的立法目的,明确了投资者在中国政治经济环境下的不幸地位及其原因。它认为,退市制度建立在令人不满意的投资者保护制度之上,使投资者处于更加不利的地位,面临越来越多的不确定性和不可预测性。本文通过对2003年《解释》中的重要法律规定和退市规定的梳理,阐述了司法机关、行政机关和投资者在这个不公平的证券市场中是如何相互作用的。
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引用次数: 0
Residential Housing Development in China: Mainly Policy Driven? 中国住宅发展:主要是政策驱动?
Pub Date : 2016-05-30 DOI: 10.2139/ssrn.2786496
Jing Li
This paper exploits the determinants of residential housing investment in 35 major cities from 2000 to 2009. Based on panel data analysis, empirical results suggest that residential housing investment boom is driven by urbanization, bank loans and economic growth. It is substantiated that housing investment is determined by housing specific factors such as housing sales and land sale price. One implication with retrospect to the historical development is the asymmetric policy effect of regulations: restrictive policies are less effective on containing housing investment while supportive policies are more effective on boosting housing investment. Market failure due to government’s discretionary policy thus occurs, resulting in the inefficient allocation of capital resources between residential and industrial land markets. Whether such development pattern is sustainable to the real economy remains to be explored.
本文研究了2000 - 2009年35个主要城市住宅投资的决定因素。基于面板数据分析,实证结果表明,城镇化、银行贷款和经济增长共同推动了居民住房投资热潮。实证表明,住房投资是由住房销售和土地出让价格等住房特定因素决定的。回顾历史发展的一个启示是规制的政策效应不对称:限制性政策对遏制住房投资的效果较差,而支持性政策对促进住房投资的效果较好。由于政府的自由裁量政策导致市场失灵,导致资本资源在住宅和工业用地市场之间配置效率低下。这种发展模式对实体经济是否可持续,还有待探讨。
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引用次数: 0
Front Matter for: Investor Protection in Capital Markets - The Case of Hong Kong 前沿议题:资本市场的投资者保障-以香港为例
Pub Date : 2015-12-10 DOI: 10.2139/SSRN.2701750
Shen Wei
Hong Kong is one of the world’s financial powerhouses. Its capital market is the second largest in Asia and 8th largest in the world, in terms of total capitalization. Indeed, these statistics under-state the importance of Hong Kong’s capital markets. The stock exchanges in Hong Kong and Shanghai combine to give the People’s Republic of China two of the three leading exchanges in Asia and two of the important exchanges in the world. Moreover, Hong Kong is the spearhead of China’s effort to open and regulate its capital markets. The economy of both China and the world will be materially affected by China’s success in further developing and regulating Hong Kong’s financial markets. The book of In Investor Protection in Capital Markets - The Hong Kong Case, provides an illuminating and comprehensive examination of the institutions and regulations governing Hong Kong’s capital markets. The book offers an in-depth analysis of the regulation of and parties operating within Hong Kong’s market that should be invaluable to all interested in this important market: research scholars, business men, legal practitioners, and institutional and individual investors alike. Hong Kong’s markets initially developed in a laissez faire legal environment. This is no longer the case. The book leads the reader on a fascinating journey through the interlocking institutions and regulations aimed at protecting investors, largely through both mandated disclosure and liability for those who make material misstatements or engage in other misconduct.
香港是世界金融中心之一。香港的资本市场是亚洲第二大、世界第八大资本市场。事实上,这些统计数字低估了香港资本市场的重要性。香港和上海的证券交易所合在一起,使中华人民共和国成为亚洲三大交易所中的两个,也是世界上两个重要的交易所。此外,香港是中国开放和监管资本市场的先锋。中国在进一步发展和规范香港金融市场方面的成功,将对中国和世界经济产生重大影响。《资本市场的投资者保障-香港个案》一书对香港资本市场的制度和规例进行了启发性和全面的研究。这本书提供了一个深入的分析和政党的规定操作在香港市场,应该是无价的所有感兴趣这一重要市场:研究学者、商人,法律从业人员和机构投资者和个人投资者都。香港市场最初是在自由放任的法律环境中发展起来的。现在情况已经不同了。这本书让读者一次奇妙的旅程通过联锁机构法规旨在保护投资者,主要是通过强制披露内容和责任那些制造虚假材料或从事其他不当行为。
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引用次数: 0
U.S. and Chinese Investment Treaties in Latin America: Convergence or Competition 中美在拉美的投资协定:趋同还是竞争
Pub Date : 2015-06-22 DOI: 10.2139/SSRN.2518845
Philip MacFarlane
This article compares U.S. and Chinese economic policies in Latin America by focusing on U.S. and Chinese investment treaties with Mexico, Chile, Colombia, and Peru, the countries of the so-called Pacific Alliance, an organization that aims to promote free trade and investment with a focus toward the Asia-Pacific region.
本文将比较美国和中国在拉丁美洲的经济政策,重点关注美国和中国与墨西哥、智利、哥伦比亚和秘鲁的投资条约,这些国家是所谓的太平洋联盟(Pacific Alliance)的成员国,该组织旨在促进以亚太地区为重点的自由贸易和投资。
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引用次数: 0
China's Proposed New Foreign Investment Law: A New Era for Foreign Investment in China 中国新外商投资法草案:外商在华投资的新时代
Pub Date : 2015-06-03 DOI: 10.2139/ssrn.2824426
Laura McCaskill
On January 19, 2015, China’s Ministry of Commerce released a Draft proposal for a new Foreign Investment Law in order to solicit opinions from the public. This new law, which if promulgated will replace the existing laws governing foreign investments, will reduce restrictions on foreign investment and streamline the approval process for foreign investment. However, the law also constitutes a crackdown on foreign investment in sensitive sectors. Most notably, the law will bring the variable interest corporate structure within the definition of foreign investment, and therefore within the ambit of regulation. This structure has been widely used by foreign investors to circumvent restrictions and prohibitions imposed on foreign investment in China. Many of the largest Chinese companies listed on U.S. exchanges are operating in China through a variable interest entity. Their standing under the new law is therefore of paramount importance.Unfortunately, the proposed law does not provide much clarity regarding how existing and new variable interest entities will be treated. Instead, the Draft maintains a broad and flexible approach that has informed the last 30 years of economic transition in China. This approach allows Chinese regulators to engage in selective enforcement, and has therefore been a popular policy choice of the Communist Party of China in it’s desire to enjoy the benefits of a market economy, while maintaining tight control. However, it also leaves many questions unanswered and issues unresolved and reduces legal certainty.It is therefore important to develop a more comprehensive understanding of how the FIL fits with the overall objectives of the Communist Party of China, which can provide some indication as to how these unresolved issues may be addressed. Examining the proposed law in its larger context, as a step in China’s economic transition, it becomes clear that ultimately Beijing adopts a cautious approach to foreign investment. The Draft, if enacted in its current form is neither a death sentence nor a thumb of approval for the VIE corporate structure. Instead, its provisions are broad enough that the impact of the law will depend upon their interpretation by authorities and courts.
2015年1月19日,中国商务部发布了新的《外商投资法(征求意见稿)》,向社会公开征求意见。这项新法律一旦颁布,将取代现行有关外国投资的法律,减少对外国投资的限制,简化外国投资的审批程序。然而,该法也构成了对敏感行业外国投资的打击。最值得注意的是,该法将把可变利益公司结构纳入外商投资的定义范围,从而纳入监管范围。这种结构被外国投资者广泛采用,以规避中国对外国投资实施的限制和禁令。许多在美国交易所上市的大型中国公司都是通过可变利益实体在中国运营的。因此,他们在新法律下的地位至关重要。不幸的是,拟议的法律并没有明确规定如何对待现有的和新的可变利益实体。相反,草案保留了一种广泛而灵活的方法,这种方法为中国过去30年的经济转型提供了信息。这种方法允许中国监管机构选择性地执行,因此是中国共产党在保持严格控制的同时享受市场经济好处的一种受欢迎的政策选择。然而,它也留下了许多悬而未决的问题和未解决的问题,并降低了法律的确定性。因此,更全面地了解《外国投资法》如何符合中国共产党的总体目标是很重要的,这可以为如何解决这些尚未解决的问题提供一些指示。从更大的背景(作为中国经济转型的一个步骤)来审视这部拟议中的法律,很明显,中国政府最终对外国投资采取了谨慎的态度。草案如果以目前的形式颁布,既不是死刑判决,也不是对VIE公司结构的批准。相反,它的条款足够广泛,法律的影响将取决于当局和法院对其的解释。
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引用次数: 0
The Moderating Effect of Bureaucratic Quality on the Pricing of Policy Instability 官僚质量对政策不稳定性定价的调节作用
Pub Date : 2015-04-30 DOI: 10.2139/ssrn.1960292
S. Lam, Weina Zhang
We examine how policy instability is priced in interest rates. Policy instability refers to the likelihood that the current policy will be changed in the future in the absence of political power shifts. Chinese government’s experimental policymaking approach provides an ideal set of frequent policy flip-flops which allows us to identify the effect of policy changes. Conditional on the bureaucratic quality of policymaking, a good-quality policy reversal is related to reductions in interest rate term spread and volatility; a bad-quality policy reversal is related to increases in the spread and volatility. The bureaucratic quality is multi-dimensional and the moderating effect is stronger on interest rates when it is measured more precisely.
我们考察了政策的不稳定性是如何反映在利率上的。政策不稳定性是指在没有政治权力转移的情况下,当前政策在未来发生变化的可能性。中国政府的实验性政策制定方法提供了一套理想的频繁政策转变,使我们能够识别政策变化的影响。以政策制定的官僚质量为条件,高质量的政策逆转与利率期限价差和波动性的降低有关;劣质的政策逆转与利差和波动性的扩大有关。官僚素质是多维度的,对利率的调节作用越精确,对利率的调节作用越强。
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引用次数: 5
From the Doha Round to the China Round: China's Growing Role in WTO Negotiations 从多哈回合到中国回合:中国在WTO谈判中的作用日益增强
Pub Date : 2015-04-15 DOI: 10.1017/CBO9781107449480.007
Henry Gao
On November 11, 2001, China finally acceded to the WTO in Doha, Qatar, at the 4th Ministerial Conference, which also launched the first negotiating Round of the new trade body since its establishment. As China is the largest country that has ever acceded to the WTO, many commentators predicted that its accession would change the dynamics of the negotiations. However, the commentators differ in their interpretations on how such change will affect the multilateral trading system. Some viewed this in a more positive light, pointing out that China would strengthen the developing country bloc and make the WTO a more balanced institution. Others, however, were not so optimistic. Instead, they argued that the Chinese accession would upset the existing power structure of the WTO and make it more difficult to conduct negotiations and reach decisions. Now in its tenth year of WTO membership, how has China changed the dynamics in the global trade negotiations? This chapter will address the impact of China in relation to the WTO negotiations. It commences with a brief discussion on how trade negotiations are conducted in the WTO, followed by an examination of China's participation in the Doha Round so far. As this chapter reveals, China started as a reluctant player in the negotiations, and only gradually made its way into the core decision-making group of the WTO rather late during the Round. Even though now China has been accepted as a member of the G-7, the most powerful group in the WTO, it has been playing only a supportive rather than a leading role. Judging from its behavior so far, we can see that China doesn’t really challenge the status quo. Instead, its modus operandi has largely been in conformity with the existing paradigm. The chapter explains the reasons for such low profile approaches, and also examines the value of the Chinese proposals so far from both quantitative and qualitative perspectives. It then seeks to explain China’s choice of particular negotiation approaches, and concludes by considering China’s behavior in future negotiations, and the broader implications of China’s growing power on the WTO as a whole.
2001年11月11日,在卡塔尔多哈举行的第四次部长级会议上,中国终于加入了世界贸易组织,这一新的贸易机构也启动了成立以来的第一轮谈判。由于中国是迄今为止加入世贸组织的最大国家,许多评论人士预测,中国的加入将改变谈判的动态。然而,对于这种变化将如何影响多边贸易体系,评论人士的解读存在分歧。一些人从更积极的角度看待这一点,指出中国将加强发展中国家集团,使世贸组织成为一个更加平衡的机构。然而,其他人却不那么乐观。相反,他们辩称,中国的加入将扰乱WTO现有的权力结构,使谈判和达成决定变得更加困难。今年是中国加入世贸组织的第10个年头,中国如何改变了全球贸易谈判的格局?本章将讨论中国对WTO谈判的影响。文章首先简要讨论了世贸组织的贸易谈判是如何进行的,然后考察了迄今为止中国参与多哈回合谈判的情况。正如本章所揭示的,中国在谈判中最初是一个不情愿的参与者,在本轮谈判中很晚才逐渐进入世贸组织的核心决策小组。尽管现在中国已被接纳为世界贸易组织(WTO)最强大的集团七国集团(G-7)的成员,但它一直只是扮演着支持而非主导角色。从中国目前的行为来看,我们可以看出中国并没有真正挑战现状。相反,它的运作方式在很大程度上符合现有的范式。本章解释了这种低调的做法的原因,并从定量和定性的角度考察了迄今为止中国建议的价值。然后,它试图解释中国对特定谈判方式的选择,并通过考虑中国在未来谈判中的行为,以及中国日益增长的力量对整个WTO的更广泛影响来结束。
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引用次数: 4
The Role of Presumptions of Market Dominance in Civil Litigation in China 市场支配推定在中国民事诉讼中的作用
Pub Date : 2015-01-28 DOI: 10.2139/ssrn.2557249
Félix E. Mezzanotte, Liyang Hou
We examine the use and effects of the presumptions of market dominance in antitrust litigation in China (Article 19 Antimonopoly Law). To this end, thirteen court decisions in cases of abuse of market dominance were analyzed. We found that the presumptions are mentioned in eight cases. The presence of the presumptions, however, did not influence the court’s rationale and findings in a meaningful way. In those cases in which the presumptions are cited and market dominance found (three cases), the court’s views were guided less by the logic underlying the presumptions than by the fact that the defendants held a monopoly position due to patent holdings or exclusive rights. In the other five cases that cite the presumptions, the defendants operated in a competitive market and dominance was not found. Here, the plaintiffs systematically failed to satisfy the requirements of the presumption due to problems of market definition and measurement of market shares. In terms of effects, the possibility that the presumptions connote a shift in the burden of proof from the plaintiff to the defendant remains unclear, and further guidance from the Chinese courts on this issue is critical.
我们考察了市场支配假设在中国反垄断诉讼中的运用及其效果(《反垄断法》第19条)。为此,本文分析了13起滥用市场支配地位案件的法院判决。我们发现在8个案例中提到了这些假设。然而,假设的存在并没有以有意义的方式影响法院的理由和调查结果。在那些引用假设并发现市场支配地位的案例中(三个案例),法院的观点较少受到假设背后逻辑的引导,而是受到被告因持有专利或专有权而拥有垄断地位这一事实的引导。在引用上述假设的其他5起案件中,被告在竞争市场中经营,并未发现其占主导地位。本案中,由于市场定义和市场份额计量存在问题,原告系统性地未能满足推定的要求。就效力而言,这些推定是否意味着举证责任从原告转移到被告的可能性尚不清楚,中国法院在这一问题上的进一步指导至关重要。
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引用次数: 1
Pension Reform in China: Racing Against the Demographic Clock 中国的养老金改革:与人口时钟赛跑
Pub Date : 2014-11-25 DOI: 10.2139/ssrn.2380479
H. Bateman, K. Liu
In the context of rapid demographic, political and economic change, the Chinese pension system has evolved from a scheme almost exclusively for urban and public sector workers to one with broad national coverage. However, this apparent success masks structural and governance deficiencies, which if left unresolved, could threaten the equity, adequacy and security of future retirement incomes. This article examines the key demographic challenges for China and their implications for the pension system. We then review and critically assess the current pension arrangements, including recent initiatives, and highlight likely future reforms. Overall, we advocate that the key to sustainable reform will be the establishment of a regulatory framework with well-defined governance structures for both publicly and privately managed pension assets.
在人口、政治和经济快速变化的背景下,中国的养老金制度已经从一个几乎只针对城市和公共部门员工的计划演变为一个广泛覆盖全国的计划。然而,这种表面上的成功掩盖了结构性和治理方面的缺陷,如果不加以解决,这些缺陷可能会威胁到未来退休收入的公平性、充分性和安全性。本文探讨了中国面临的主要人口挑战及其对养老金制度的影响。然后,我们审查和批判性地评估当前的养老金安排,包括最近的举措,并强调可能的未来改革。总体而言,我们主张可持续改革的关键将是为公共和私人管理的养老金资产建立一个具有明确治理结构的监管框架。
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引用次数: 2
Understanding the Law of Torts in China: A Political Economy Perspective 理解中国侵权法:一个政治经济学的视角
Pub Date : 2014-10-27 DOI: 10.2139/ssrn.2515449
Wei Zhang
In this paper, I tried to connect the text of the Chinese tort law with the institutional context of lawmaking in China from a political economy perspective. Two determinants, political influence and populist pressure, were identified for the tort law legislation in China, and a simple spatial model was presented to demonstrate the mechanism through which these determinants might have affected the text of the law. In particular, my research suggested that, when injurers’ political influence kept constant, the populist pressure on the injurer group tended to push the tort law rules toward the pro-victim end. On the contrary, with the similar populist pressure, the politically influential injurers could induce legal rules to their advantage. Even within a particular type of torts, the subgroup of injurers who were better organized to exert political influence would be rewarded with more favorable rules on torts than their fellow injurers, especially where populist pressure was moderate. Hopefully, this research will inspire more efforts among students of Chinese law to explore the operation of law at the microscopic level against the macroscopic institutional backdrops of this country.
本文试图从政治经济学的角度,将中国侵权法的文本与中国立法的制度语境联系起来。本文确定了中国侵权法立法的两个决定因素,即政治影响和民粹主义压力,并提出了一个简单的空间模型来展示这些决定因素可能影响法律文本的机制。特别是,我的研究表明,当伤害者的政治影响力保持不变时,对伤害者群体的民粹主义压力倾向于将侵权法规则推向有利于受害者的一端。相反,在类似的民粹主义压力下,政治上有影响力的伤害者可能会诱使法律规则对他们有利。即使在一种特定类型的侵权行为中,组织得更好、能够施加政治影响的损害人亚群也会比其他损害人获得更有利的侵权行为规则,尤其是在民粹主义压力温和的情况下。希望本研究能启发更多中国法学专业的学生,在中国宏观制度背景下,从微观层面探索法律的运行。
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引用次数: 2
期刊
Chinese Law eJournal
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