The beneficial ownership concept has constituted for more than half a century one of the most fundamental and debated issues in the application of tax treaties. This article goes back to routes of this term explaining the reason of its original inclusion in the OECD Model Tax Convention and why ultimately such inclusion may have not been necessary. Then it analyses the historical developments of beneficial ownership in the OECD Model Tax Convention. For that purpose it considers different interpretations adopted by jurisdictions (particularly in China) and local courts delving into some of the landmark cases on the subject. Finally it provides a detailed analysis of the current meaning of beneficial ownership considering the most recent developments in the Commentary to the OECD Model Tax Convention.
The UK’s position as a leading international financial center depends not only on the openness and competitiveness of its market, but also on its reputation as a clean and fair place to do business. Market confidence will be undermined where participants and users believe markets are susceptible to abuse. Thus, the main convincing justification for controlling insider’s abuse of power is based on the harm principle, which it causes to investor confidence and securities markets. An insider ought not to be able to take advantage of his position either to breach a confidence or to achieve an unfair advantage in the market place; particularly the market place should, as far as possible, provide equality of opportunity to people entering it. Insider dealing has been regulated by the criminal law involved under Part V of the Criminal Justice Act 1993 in the UK. It has become clear that the traditional criminal penalty was limited by the criminal standard of proof required, while self-regulatory regimes are thought as toothless tigers. Although various potential common law civil remedies for breach of fiduciary duty and breach of confidence relating to insider dealing do exist, they are ineffective remedies and beset by so many complexities. As a response, the Financial Services and Markets Act 2000 came into force and marked an important development in the regulation of market abuse in creating civil penalties, which also contained misuse of confidential insider information. Later, the main substantive changes to existing civil market abuse regime have been taken effect within the Financial Services and Markets Act 2000 (Market Abuse) Regulations 2005, 2011 and 2014. Regarding to the regulatory framework, the range of regulatory powers of the Financial Services Authority, which has been replaced by the Financial Conduct Authority in April 1, 2013, available in combating market abuse is one of the most fundamental innovations of the FSMA 2000 and plays a significant role in defining the law in practice through a Code of Market Conduct. China has also exerted great efforts in regulating insider dealing. Under the current Chinese legal framework, insider dealing is governed by the Criminal Law of the People’s Republic of China, the Securities Law of the People’s Republic of China 2005 and some other regulations. The China Securities Regulatory Commission (CSRC) is the regulatory body for supervising and penalizing insider dealing in China. Although China has made progress in legislation in terms of the regulation of insider dealing, there are still much room for improvement, such as the enforcement of the civil penalty and the enforcement power of the CSRC. Due to the fact that the UK has rich experience in regulating insider dealing, it is of great significance for China to learn from the UK’s successful practices. Insider dealing could be well controlled with innovative and effective legal regulations. This article focuses on an in-depth examination on the regulations in the UK and a brief introduction of regulations in China in order to figure out an answer to what has been achieved in the UK and what are the most important aspects that China could learn from the UK’s experiences. The aim of increasing the deterrent effect by reducing the obstacles to imposing suitable sanctions, whether criminal, civil or regulatory, should enable regulators to police a more efficient manner in the field of financial markets.
Imbalanced doctor-patient conflicts and divergences such as healthcare disturbance (yinao) significantly undermine the already-weakened mutual trust and lead to further deterioration of workplace safety and environment for medical professionals in China. China has to implement all sorts of efforts to cut off the hostile settings where medical disturbances are rooted and developed. Such measures should at least include sufficient remedies provided by medical insurance, refined administrative mediation mechanism, better workplace protective systems in medical institutions, and more importantly, a full-pledged framework with enforceable rules to circumvent medical disturbances and resolving medical accidents. It is necessary to stipulate administrative, civil and criminal measures to punish medical disturbers while guaranteeing medical professionals such as doctors, nurses and supporting staffs due secured medical practice. In particular, a third-party dispute resolution mechanism, an improved appraisal platform and protection of confidential information of patients and doctors should be implemented in due course. In addition to a more refined legal framework, the social, cultural and professional settings of medical practice should also be further improved by removing “revenge” attacks on Chinese hospital professionals.
Little scholarly work has been done on understanding Taizong’s (one of China’s most influential emperors) legal thought. Existing historiography has been descriptive and has not fully contextualized Taizong’s legal thought in his broader political thought. Furthermore, it has been influenced by the traditional bias in Tang historiography as a whole, which has been adulatory toward Taizong’s reign. Drawing from a variety of sources, including dynastic histories and Taizong’s writings, this article seeks to complicate the existing historiography. It lays out key characteristics of Taizong’s legal thought, situating them in the historical context in which Taizong operated, as well as contextualizing them within his broader political thought, to present a more balanced analysis. It will argue that Taizong was an emperor who was concerned with legality, competent legal administration, and leniency in punishments. His actions and rhetoric also suggest that he believed that law should be applied to the emperor’s conduct as well. At the same time, this article also argues that Taizong should not be viewed primarily as an innovative legal thinker or as someone with an ideological or idealistic commitment to legal reform for its own sake. Rather, he was a man whose views on law were greatly motivated by practical, political concerns, such as concerns regarding the stability and legitimacy of his rule. More broadly, this article contributes to the historiography of traditional Chinese legal history by complicating the so-called dominant narrative of the process of “Confucianization of law” in premodern Chinese history by highlighting the role that specific historical actors (such as Taizong) played in that process.
There are basically four stages of a person’s thinking. The first is a person’s quest for meaning. It is a time for questions. Socrates said that an unexamined life is not worth living. Yet in America, living an examined life is rare. The challenge is to live an examined life in a culture of unexamined lives. The second stage is a time for answers. We cannot avoid the realism of evil, yet today, few have seriously examined absolute evil. The third stage is a time for confirmation and assurances to our answers of evil and pain. The fourth stage is the time for commitment and beginning of the journey. For the simple person who has all the answers, there is no further journey. At the other extreme is the intellectual who never has all the answers. There is always a question for another day and there is never any really settled resolution on what he or she believes or why. There are two basic philosophical systems that have influenced our thinking about morals and about law. The first is naturalism, which began in the 6th century B.C., in the Greek Ionian culture with a certain set of cosmologies, most of which were naturalistic in nature where reality was expressed in terms of water, fire, earth, or air. Naturalism has experienced great growth since in the Enlightenment. However, the notion at the heart of morality and law is idealism. Indeed, for much of the history of legal thought, the connection between morality and law was found in idealism. It is within the philosophy of idealism that we find the history of natural law theory. This matters because how one thinks about the nature and purpose of law, what forms the foundation of law and how it is made, either legislatively or through the courts is one of the most elusive and persistent problems in the entire range of human thought. This article explores some of that history.