论会计监管权正当性与法律定位
本站原创 论文中文摘要：会计监管近年来一直是个热门话题。美国安然公司、世通公司、施乐公司的财务会计舞弊让世界震惊,并直接催生了美国2002年《萨宾纳斯一奥克斯莱法案》(SOX法案)。我国证券市场上的会计丑闻也是一件接一件。从上世纪末的“琼民源案”、“红光案”,到最近的“科龙案”、“G银河案”、“ST天一案”,涉及会计、会计操纵的数十家上市公司轰然倒塌在中国并不成熟的证券市场,市场秩序受到了极大的冲击,公众信心受到了前所未有的打击。会计监管的话题一次次被摆在政府、学界、行业界和社会公众面前。一位学者说过:“金融监管无论作为一种政府权力还是作为一种制度或行为,本质上都是一个法律问题”,同样会计监管的本质也应该是一个法律问题。目前,会计学界关于会计监管的研究方兴未艾,理论成果可以说硕果累累。而法学界对会计监管的关注却非常有限。说到会计监管必然涉及会计监管模式和体制,会计监管模式、体制的核心问题又是会计监管权的配置与运行。也就是说无论是谈论会计监管主体、客体、对象,还是谈论政府主导型监管模式、行业自律监管模式;无论是谈论会计监管立法、执法、还是司法,都是紧紧围绕着一个核心——会计监管权的设定、分配、行使展开的。遗憾的是,这个核心至今没有受到学人的关注,至今没人对会计监管权进行过系统的分析和论述。我国现行会计监管法律制度存在着“监管权力分散和冲突”、“监管者职责不清”、“法律责任体系不健全”等诸多问题。证券市场上一桩桩惊心动魄的财务舞弊案实证地显示出我国会计监管有效性的严重不足,但学界对于如何构建适合中国国情的会计监管模式和体制,完善会计监管法律制度,并没有一个统一的认识。是否能从会计监管权的角度重新审视会计监管问题,这是本文的兴趣所在。但会计监管权是一个很复杂的现象,本人基于能力和论文篇幅所限,只对会计监管权的正当性和法律定位等基本问题作力所能及的分析,期翼为今后的后续研究打下基础。我国现行公司法、证券法、会计法都规定了政府对上市公司进行会计监管的权力。从经济学意义上考察,会计监管作为监管的一个分支,具有与监管权相同的经济学意义,即会计监管权是政府规制微观经济活动的一种权力。这种权力在法理学上被认定为一种公权力。会计监管权与一般行政权并不相同,它不仅具有执行权、管理权的特性,还有准立法权和准司法权的特性,这种复合性权力是政府规制的内在要求所决定的。人类历史上的一切权力都把谋求正当性作为首要的任务,现代权力也不例外。既然会计监管权是一种公权力,那么要解决的首要问题就是寻求这种公权力的正当性。洛克、马克斯·韦伯和哈贝马斯都曾对权力正当性的进行过论述,从中可以得出权力的正当性源于某种普遍被认同的价值基础。这种价值反映到物质关系上体现为一种利益关系。根据政府监管的公共利益论者的思路,对会计领域存在的市场失灵进行了分析后可以发现,会计监管权的正当性理由在于维护证券市场中的公共利益。历史事件的回顾也佐证会计监管权始终扮演着在公共危机中拯救与维护公共利益的神圣角色。公共利益是会计信息相关者之间利益的抽象。现实中考量的公共利益其实是各种利益关系冲突与协调结果。因此,要明确界定会计监管权中的公共利益,必须对公众利益、政府利益、上市公司利益有清醒的认识。利益关系的协调不等于对利益各方一视同仁,不同的国情,不同的发展阶段应有不同的侧重。从经济学分析,以及对他国会计监管权定位的考察与借鉴,我国的会计监管权应在协调证券市场各方利益均衡的基础上侧重于投资者利益的保护。这在我国政企尚未完全分开,政府过多干预上市公司的当下情形更具有现实意义
Abstract（英文摘要）： The problem about accounting regulation has discussed a lot in recent years. The fraud cases of Enron Company and the World Com Company shocked the whole world, and caused the birth of Sarbanes-Oxley Act in American directly. At present our country stock market accounting information disclosure has a lot of problems that seriously has disturbed the normal order of our country stock market and has brought a very big harm for our country and society. But governing the false accounting information and satiying the management decision-making and the investor, correct information must depends upon accounting regulation and management in the very great degree, which adapts to the development of the financial market especially the stock market. The accounting scandals in stock market also broke frequently in our country. As a result, the topic of accounting regulation and regulation has become more and more popular with government, institute and the society.A scholar once said, the financial regulation was a legal question basically, whether it was regarded as a kind of government power or a kind of action. As the same reason, the accounting regulation is also a legal problem. Nowadays, the accounting regulation is widely cared. Many experts and scholars from economics and accounting began to reflect, discuss, and research into such cases, and put forward their own theories and solutions. Compared with the heated discussion in economics and accounting, not much care is paid in the legal fields. When we talk about the accounting regulation, it must be contacted with the mode and system of itself, the most important problem is how to divide and carry on the authority of accounting regulation. A series of questions that come from accounting regulation in China forced us to focus more in the key problem. It is shamed that few people researched the authority of accounting regulation or expounded correlative theories. Accounting information is the most important economic information in the market economy. With the rapid development of the economy, the demand for accounting information of investor, creditor, the public and the government are increased quickly. Transparent, adequate accounting information is not only indispensable in decision for people, but also ensures to the capital market prosperity. In order to improve the quality of accounting information of the capital market and prevent financial fraud, we must construct a new mode of accounting regulation in China. The theory field has not got the same idea of the critical task; the text is trying to discuss the justice and the legal deposition with the power of accounting regulation. Using the knowledge of law, sociology, economics, the author hope that this paper can provide a new sight on the constructing of the accounting regulation system in China. It is the meaning and purpose to discuss this topic.We can understand clearly that the power of accounting regulation is a public power in fact. The reasons are as follows: firstly, accounting regulation is a kind of regulation designed by government. The accounting regulation institutes which manage and supervise the public companies must been given the authority from the government; secondly, the power of accounting regulation has an obvious character of enforcement, this makes inequalities between the subject and the object of regulation, the second one must obey the first one’s regulation; thirdly, the purpose of giving and functioning the power of accounting regulation is assuring the public companies to provide true information and give it on time, the start point is the interest of public. Above all, the power of accounting regulation is an important way to control the economics by the national government.In the human history, justice has always taken the first place in all the kind of powers. Modern power also chases it. The power of accounting regulation is a public one, but why should it exist? We can make a conclusion that the power of accounting regulation is along with the public crisis in the stock market from its beginning. When we analyses this phenomenon, we can find the accounting information has the outside-affection, as well as the imbalance of information. This decreases the efficiency of using resource and does harm to the public interest. The most workable solution is to find the justice reason of the power of accounting regulation, and it can se the public interest when the market can not run oothly by itself.The public interests are the obstacle reflects among different accounting relationship. As a result, the government must make effort to balance the interest conflicts between the users of accounting information, and make the social interest get its highest point. But balancing the interests doesn’t mean protecting them by one standard, they must be treated differently. According to analyses the deposition of the power of accounting regulation in our government, the paper find that protecting the investors especially the aller ones has a greater meaning in nowadays.
论文关键词： 会计监管权；正当性；法律定位；公共利益；
Key words（英文摘要）： The power of accounting regulation；Legitimacy；Legal deposition；The public interest；
Abstract（英文摘要）： The problem about accounting regulation has discussed a lot in recent years. The fraud cases of Enron Company and the World Com Company shocked the whole world, and caused the birth of Sarbanes-Oxley Act in American directly. At present our country stock market accounting information disclosure has a lot of problems that seriously has disturbed the normal order of our country stock market and has brought a very big harm for our country and society. But governing the false accounting information and satiying the management decision-making and the investor, correct information must depends upon accounting regulation and management in the very great degree, which adapts to the development of the financial market especially the stock market. The accounting scandals in stock market also broke frequently in our country. As a result, the topic of accounting regulation and regulation has become more and more popular with government, institute and the society.A scholar once said, the financial regulation was a legal question basically, whether it was regarded as a kind of government power or a kind of action. As the same reason, the accounting regulation is also a legal problem. Nowadays, the accounting regulation is widely cared. Many experts and scholars from economics and accounting began to reflect, discuss, and research into such cases, and put forward their own theories and solutions. Compared with the heated discussion in economics and accounting, not much care is paid in the legal fields. When we talk about the accounting regulation, it must be contacted with the mode and system of itself, the most important problem is how to divide and carry on the authority of accounting regulation. A series of questions that come from accounting regulation in China forced us to focus more in the key problem. It is shamed that few people researched the authority of accounting regulation or expounded correlative theories. Accounting information is the most important economic information in the market economy. With the rapid development of the economy, the demand for accounting information of investor, creditor, the public and the government are increased quickly. Transparent, adequate accounting information is not only indispensable in decision for people, but also ensures to the capital market prosperity. In order to improve the quality of accounting information of the capital market and prevent financial fraud, we must construct a new mode of accounting regulation in China. The theory field has not got the same idea of the critical task; the text is trying to discuss the justice and the legal deposition with the power of accounting regulation. Using the knowledge of law, sociology, economics, the author hope that this paper can provide a new sight on the constructing of the accounting regulation system in China. It is the meaning and purpose to discuss this topic.We can understand clearly that the power of accounting regulation is a public power in fact. The reasons are as follows: firstly, accounting regulation is a kind of regulation designed by government. The accounting regulation institutes which manage and supervise the public companies must been given the authority from the government; secondly, the power of accounting regulation has an obvious character of enforcement, this makes inequalities between the subject and the object of regulation, the second one must obey the first one’s regulation; thirdly, the purpose of giving and functioning the power of accounting regulation is assuring the public companies to provide true information and give it on time, the start point is the interest of public. Above all, the power of accounting regulation is an important way to control the economics by the national government.In the human history, justice has always taken the first place in all the kind of powers. Modern power also chases it. The power of accounting regulation is a public one, but why should it exist? We can make a conclusion that the power of accounting regulation is along with the public crisis in the stock market from its beginning. When we analyses this phenomenon, we can find the accounting information has the outside-affection, as well as the imbalance of information. This decreases the efficiency of using resource and does harm to the public interest. The most workable solution is to find the justice reason of the power of accounting regulation, and it can se the public interest when the market can not run oothly by itself.The public interests are the obstacle reflects among different accounting relationship. As a result, the government must make effort to balance the interest conflicts between the users of accounting information, and make the social interest get its highest point. But balancing the interests doesn’t mean protecting them by one standard, they must be treated differently. According to analyses the deposition of the power of accounting regulation in our government, the paper find that protecting the investors especially the aller ones has a greater meaning in nowadays.
论文关键词： 会计监管权；正当性；法律定位；公共利益；
Key words（英文摘要）： The power of accounting regulation；Legitimacy；Legal deposition；The public interest；