Chapter 7 Chapter Five Five Foundations of Corporate Governance

However, capitalism was gradually socialized under the impact of "Das Kapital", and the concept of fairness gradually took root.Take the United Kingdom as an example. The royal courts founded by King Henry II edited past cases and formed the basis of today's common law system (also called the law of the sea, or common law).It is worth noting that, due to the impact of Marxism, the British Supreme Court began to study the "Equality Act" (translated into "Equity Law" in Chinese). The Common Law and Equality Acts were combined in the English Judiciary Act in 1873 and 1875 to become today's "Common Law". What the "Common Law" pursues is to incorporate a society's concept of equality into the bill.

What is the concept of equality in society?For example, in the courts of the United Kingdom and the United States, it is not the judge but the jury that really forms the judgment of the case.It is difficult for us to understand this thinking, because what we in China follow is the concept of "elitistism".The so-called "elitism" means that when you were young, your parents urged you to study every day, telling you how to get into Tsinghua University if you didn't study hard.You got a score of 97 in the test this time, which is not good, you have to work hard, and you must get a perfect score next time.Only by studying well can you become an elite in society in the future.Our group, including me, are poor creatures under "elitism".When I was young, my parents forced me to study. My IQ was not very high, so I studied very hard.I thought at the time that when I become a father in the future, I will never force my children to study.As a result, after I became a father, I not only forced my son to study, but also forced him to learn violin and piano.This is "elitism" at work.Under the "elitist" system, it is difficult for us to understand and appreciate the common law concept of equality.

I would like to ask readers a word, suppose you are going to a court today and someone tells you that the judge is a Harvard University Ph.D., you will immediately feel relieved.If someone tells you that this judge is an ordinary person, you must be worried to death: "It's over, it's over, don't fight this lawsuit." We all think so, because we are all people cultivated by "elitistism".But what the British Judiciary Act emphasizes is "non-elitistism".The standard of fairness in society as a whole is not determined by the social elite, but by ordinary people.That is to say, the jury is composed of the general public.For example, a professor like me with a Ph.D. from the Wharton School of Business may be considered insane, or paranoid for short, and be excluded from the jury.Because people like me are very self-righteous, I cannot serve as a judge in the common law system.Do you know why?Because I have always had a preconceived notion that this is the purpose of studying for a doctorate, so that you know how to stick to your prejudices and become a doctorate.

But the judgment is not enough. In the common law system, you cannot be biased in the judgment, so the opposing lawyer will ask the jury members: "Have you read the newspaper recently to understand the case?" You just need to say that you have read the newspaper to understand If you pass the merits, you may be eliminated because you are not objective and therefore not qualified to serve on the jury.What if it is a doctor?It may also be eliminated.The jury will look for those who don't read newspapers or books, spend their days doing nothing but playing mahjong.Do readers know why?This is the great creation of the common law system, because like a person who plays mahjong all day long, what he thinks in his head and his value judgment standards are nurtured by the society since he was a child, including TV, radio, neighbors, The ideas instilled in him by friends, teachers, and classmates.His simple idea is the condensed value judgment of the whole society, so he will judge the case.Do you know?Only in countries with a common law system can there be a good stock market. If it is not under the common law system, there will be no good stock market.Continental Europe is a civil law country, and almost no country has a good stock market.For example, the "Yinguangsha" incident, such an obvious fraud case, is difficult to be sentenced in our Chinese courts, because crimes are usually ahead of laws and regulations, and China is a country with a civil law system, which must be sentenced according to law. If there are no laws and regulations, the case cannot be judged. This is the shortcoming of the civil law system.However, the common law system is different. The jury does not need to understand the law, nor does it need to read the regulations.They'll think, if my son's report card is fake, I'll beat him to death.If my son's report card cannot be faked, why can the listed company's report card be faked?Then it is guilty.He does not need legal knowledge at all, nor does he need to study.He can tell whether you are guilty or not with just one simple, ordinary idea of ​​his.Such a criminalization method regards the value standard recognized by ordinary people in the whole society as the fair standard of a society.This kind of creation is very great.What is fairness in this society?That is what the common people think is fair, and that is fair.And this kind of fairness depends on the perception of fairness of all people in the whole society.What the jury represents is the value standard of ordinary people, which is fairness.Note, folks, that this is an equality notion that came into being eight years after Marx finished his Das Kapital.

Apart from the common law notion of equality, fiduciary duties have also played an important role in British history. The exact source of "fiduciary duty" is unknown, but according to Young's (2002) research, its origin should be in 1533, when 240 London merchants paid £25 each for a ship consisting of three ships team equity.And this fleet plans to set off from the northeast of England to find China.At that time, the 16th century was a very interesting century. Everyone had a great interest in China. Marco Polo set out to the east to find China, and he found it.Columbus sailed west, looking for China, and he found America.These London businessmen plan to set off to the north to find China. Readers, guess what they found?

Since the three ships were out of the control of the ship owners (shareholders) as soon as they sailed out, a so-called "fiduciary responsibility" to the shareholders had to be raised at that time, because the shareholders lost control of the ships as soon as they sailed out. Unless the captain himself has a fiduciary duty, and he steers the ship away, there is literally nothing the shareholders can do.The fleet sailed under the anxiety of the shareholders. Two of the ships sank off the coast of Norway, and the last ship sailed all the way to the North Pole.The crew skied for a reported 2 million meters before they encountered a group of people whose leader was "Ivan the Horrible".They exchanged items with each other, and the crew exchanged quills, trinkets, desk stationery, etc. with the Evan tribe for ermine and other goods.Interestingly, both sides thought they had taken advantage of each other.At that time, the ship's name was "Muscovy", so they named the place Muscow.Now I can answer readers’ questions. Those who sailed north to find China did not find China, but they found today’s Russia. The history is really interesting.

However, instead of fleeing, these crew members returned to London and sold their valuables such as minks, making their shareholders a fortune.If the captain sails again next time, more shareholders will be willing to invest in him because he has a fiduciary responsibility. The captain of the ship signed a treaty with the local "King of Terror, Evan", thus establishing the first Joint Stock Company, named "Muscovy Company".The company specified the fiduciary responsibilities of shareholders, and more shareholders could buy shares in Moskow, and they could vote to appoint the governor and deputy supervisor of the region and the managers of Moskow.In this situation where management rights and ownership have to be separated, the so-called shareholders at that time did not have any protection measures, but only relied on the manager's "fiduciary responsibility" to maintain the company's development.And the company's shareholders can privately trade equity in the secondary market without interfering with the company's operations.

Fiduciary duty has played an important role in the UK, and even today's British stock market is almost governed by fiduciary duty. In addition to inheriting the spirit of equality of the British common law, the United States still suffered from the impact of Marxist theory in subsequent laws, and gradually introduced the concept of severe punishment by the government to ensure fair implementation. Marxism clearly points out the contradiction between capitalists and laborers—to develop capitalism, the value of surplus labor must be exploited, so a basic premise of Capital is that there is antagonism between laborers and capitalists.Let me ask you to recall the US Antitrust Act of 1890. The English of "Antitrust Law" is Anti Trust.

Anti means "anti", so what is Trust?It's a trust fund. The Antitrust Act is, after all, an antitrust fund.Do you find it strange?When you look back at the history carefully, you will find how interesting the history is-because the large American families are actually the holders of many trust funds.So, Anti Trust, the Antitrust Act is actually the Anti-Trust Fund Act, that is, the Anti-Large Family Act.The anti-big family represents not only a problem of vested interests, but also a capitalist idea.Therefore, European and American countries not only seek the fairness pursued by Marx at the legal level, such as common law, but also formulate laws to resolve the contradictions between capitalists and laborers.The idea that resolution starts with capitalists, not laborers, is too important.Because from 1844 to 1677, Marx and Engels pointed out that capitalists with vested interests would use some false ideas to poison laborers, such as promoting the spirit of Christianity, requiring laborers to accept the leadership of God and accept everything God has given, including Accept the unfairness of this society and so on.Therefore, Marx proposed that if society wants to progress, it must break the ideas that hinder social progress, including Christian thought, and this is also the origin of Marx's materialism concept.In order to avoid the impact of Marxism, labor-capital conflicts must be resolved from the capitalists instead of the laborers. All of this is due to the impact of Marxism.

Let me give you an example, Bill from Microsoft?Gates, offered to donate all his wealth to start Bill a few years ago?Gates Foundation.Because he believes that besides his personal ability, his achievements today have greater contribution to the nurturing of the whole society, so what he takes from the society must be returned to the society.This is not a simple individual phenomenon, but a spirit of maintaining fairness in a new form of capitalism that has been inherited from the Antitrust Law.We were surprised to find out that the U.S. government was targeting big families.However, it is definitely not resolved by means of so-called armed struggle. Instead, it is hoped that the big family will survive for a thousand years and withdraw from the economic stage of the United States.

Readers should also pay attention to one thing, the United States and the United Kingdom are different countries.American immigrants are extremely individualistic people who are willing to sever ties with their past culture, ethnicity, relatives, and friends.The impact of such individualism on the United States has been enormous.Once these people become capitalists, they will bring turmoil and anxiety to American society. However, the extreme individualism of the United States, coupled with the trend of thinking against the link between the government and business, manifests itself in the stock market as exploitation of shareholders and chaos, without government supervision.Therefore, the US stock market before 1933 is like the Asian stock market today. Between 1929 and 1932, the market value of the New York Stock Exchange dropped from $89 billion to about $15 billion.Investor confidence collapsed during this period, and many stocks did not even trade at all.According to historical records, the collapse of the US stock market at that time was not due to fundamental problems, but due to speculative factors.At that time, 55% of the personal savings in the United States were spent on stocks.And a large part of it is to use financing (Margin) to speculate in stocks.But the government has no limit on the amount of financing.Although the largest lenders at that time were securities companies, most of their financing also came from bank loans (is this very similar to Asia).When the stock market collapsed in 1929, this caused a chain reaction: banks forced securities companies to repay the money, and securities companies sold customers' stocks by force, which caused the stock market to fall further, and banks further forced securities companies to repay the money... thus forming vicious circle. The U.S. Congress held hearings on the matter in 1933.The hearing report pointed out that the main reason why the stock market was so prosperous in the 1920s (before the crash in 1929) was the speculation of securities companies.When a securities company sells stocks, it buys a large amount first, causing the stock price to rise, and unsuspecting investors follow up (this is the so-called "dancing with Zhuang" in the Chinese stock market), causing the stock price to rise further.Securities companies and market makers then sell the stocks to retail investors and make a fortune. At that time, there was sufficient evidence to show that the fraud of listed companies was very serious (similar to the "Yinguangsha" incident in China), and company insiders also participated in a large number of insider transactions and plundered small shareholders. The company pays no attention to information disclosure at all, and even publishes an annual report.In addition, the proxy system for the general meeting of shareholders had not yet been established at that time, which allowed listed companies to do whatever they wanted. For the situation described above, interested readers can refer to Chapter 2 of the Securities Exchange Act of 1934 in the United States, which details the investigation results of Congress at that time . But after 1929, the U.S. stock market, like the Chinese stock market some time ago, became a stagnant pool, because small investors were no longer ignorant, and they were no longer willing to invest money in the stock market.Therefore, under the strong leadership of President Roosevelt at the time, in order to improve the stock market, the U.S. government took a dangerous move that was opposed by the whole United States at that time-strengthening government supervision to maintain the development of the stock market.At that time, at the time of the great economic panic in the United States, Roosevelt's think tank was drafting the "National Recovery Act" (National Recovery Act).The think tank led by Douglas (William O. Douglas) also asked the president to formulate strict securities trading laws, whose idea is to introduce government power into stock market supervision.This is at odds with the thinking inherited from the English common law, which requires the government not to interfere in the workings of the economy.Although President Roosevelt could not fully understand the relationship between regulation and the development of the stock market, his sixth sense told him, "This will be the foundation for the prosperity of the United States in the next century." Therefore, he resolutely accepted the idea of ​​the government strengthening regulation. At that time, the Securities Exchange Act was divided into the Securities Act and the Exchange Act. The Securities Act authorizes the Federal Trade Commission (Federal Trade Commission) to supervise the market rules and information disclosure of the primary market, and the Exchange Act lists the findings of the US Congress' investigation of the US stock market. Since the "Securities Law" mainly focuses on the disclosure of market information and does not involve government interference, Congress passed the law very quickly.But the "Exchange Act" is different. Because the law lists many problems in the stock market, strong government intervention is inevitable.At the time, the securities community was worried that government interference would cause the stock market to shrink (the Chinese stock market seemed to respond similarly to my call for more regulation), so they came up with their own proposal.In order to make the "Exchange Act" pass smoothly, the US government made a lot of concessions at that time, the biggest concession was the establishment of the US Securities Regulatory Commission.why?Because the securities industry doesn't want the FTC to get involved, especially James, who was then chairman of the FTC and shouted for regulation? M?Landers (James M Landers) stepped in, so they agreed to create a government agency, the United States Securities and Exchange Commission, and the Securities and Exchange Commission probably took its name from the Securities Act, the Exchange Act, and the Federal Exchange Commission Take one word for each, that is, Securities Exchange Commission (SEC).The US Securities and Exchange Commission is only responsible for stock market regulation.Under the pressure of the securities industry, the U.S. government gave in again, allowing a big banker in the securities industry to serve as the first chairman of the U.S. Securities and Exchange Commission, and that person was Kennedy. This Mr. Kennedy is the father of US President Kennedy.At this point in development, we can only sweat for the U.S. securities regulatory system—the U.S. government has to bow to interest groups.But do you remember that there is a line in the American national anthem called "God Bless America".Because apart from God bless the United States, I really can’t find any other reason to explain the subsequent dramatic development. People in the American securities industry never dreamed that Kennedy would make good use of his past experience of violating regulations in the future and become a violator in the securities industry. The big killer.And he even hired Landers and Douglas as his deputies.Thereafter, Douglas was the second chairman of the SEC and Landers the third. The improvement process of the US regulatory law is probably unique in the world.U.S. regulatory laws and regulations are extremely rigid terms. The U.S. Securities and Exchange Commission uses the unlimited investigative power endowed by the U.S. Constitution to protect small and medium shareholders. Their investigative power (can issue subpoenas) is unlimited in the United States. Anyone involved in the case is summoned, which the parties cannot refuse, and challenges to the investigation by the parties are in principle rejected by the federal courts.Although the common law system requires the government to withdraw from the economic stage, this special history of the United States has created a unique common law system in the United States and a system of government supervision to work together to protect small shareholders. In addition, the common law system in the United States gives small shareholders the right to collectively sue. As long as one person wins the lawsuit, the interests will belong to all shareholders.At the same time, the prosecution and the defense must bear their own litigation costs, and lawyers are willing to accept cases where they only receive money after winning the lawsuit.But the most important point is that the burden of proof in SEC law is on the defendant, not the plaintiff.Therefore, any actions by the company to harm the minority shareholders will lead to a series of litigation actions.After the trial, the jury will make a verdict based on the principle of fairness in the common law system and the legal basis of both parties.Even if the defendant's company presents evidence of innocence, it will suffer losses in time, energy, and expensive legal fees, and it may also be humiliated by the public for a long time.Therefore, policymakers must weigh every company action to ensure that it does not antagonize the public.The U.S. legal system effectively disperses the power of supervision to each shareholder, and puts social standards of fairness into the company's actions.But in Canada, class actions are not allowed, and lawyers are not allowed to collect money only if they win the case.Other countries with the Organization for Economic Co-operation and Development (OECD) have largely no system in this regard similar to the class actions and inversion of the burden of proof in the United States. But readers, please note that it is precisely because of the continuation of the "Antitrust Act" and the impact of Marxism at this stage that the U.S. government has deeply understood the truth that if a country wants to maintain long-term stability, it must put the people first More specifically, it is necessary to resolve labor-capital conflicts by hiding wealth among the people.The result of hiding wealth among the people has created today's America. Let me take the US stock market as an example to explain how to use the wealth redistribution function of the stock market to achieve the effect of hiding wealth among the people and resolving labor conflicts.The United States and Canada are both countries with the same common law system, but more than 89% of listed companies in Canada are controlled by families.What about America?Most of its companies turned out to be publicly owned rather than family controlled.Most companies in the world, except for companies in the United States and the United Kingdom, are family-controlled.Why is the United States publicly owned?This is the result of the socialization of capitalism.It was an extremely huge project at that time, and the more than 40 years from 1890 to 1934 can be said to be the era when the entire American society realized the rule of law.The vastness of the whole project, the clear purpose and the shocking effect are enough to move everyone. How to create a stock market that redistributes wealth?First of all, the U.S. government gave up the strategy of 1720 (at that time, the governments of Britain, France and other countries had nothing to do with the stock market, and could only take measures to close joint-stock companies and banks), and took measures to completely resolve the contradiction between capitalists and laborers, avoiding Marxism. Great national policy prophesied by communism.In addition to restricting big families through the "Antitrust Act", the US government has taken further measures to make the public richer and resolve conflicts.How can the general public become richer?That is, since 1932, a series of strict regulatory laws have been implemented, that is, severe punishments have been used to redistribute wealth in the stock market.At that time, the U.S. government put forward the correct thinking of the stock market. The so-called stock market is to raise funds from the whole society and hand over the funds to the most capable professional managers for management.How does the public know that he is the most capable?Professional managers must disclose correct information, and the role played by the government is very important at this time.The government must ensure that the information disclosed by a professional manager is true, and it must ensure that this person has a sense of responsibility, that is, a fiduciary duty.That is to say, once you become a professional manager, you have the responsibility to do a good job and create wealth for shareholders. The "fiduciary duty" of the United States is inherited from the United Kingdom and is extremely important.For example, American courts strictly prohibit the transfer of interests of managers, including misappropriation of public funds, transfer of assets, and issuance of stocks to themselves [Bebchuk (1985) Brudney, Chirelstein (1978) think it is not strict enough].However, the high salary and high incentive options for managers are basically not involved.Like the UK, the fiduciary duty in the US is an important pillar of protection for small shareholders.However, the development of the United States has marked that it is different from the United Kingdom - further government intervention has been introduced, so the United States has stricter requirements for fiduciary responsibility. It can be said that the fiduciary responsibility under the severe punishment law cannot be challenged.Professional managers of listed companies dare not fail to undertake fiduciary responsibilities.If this professional manager discloses false information, the US government will definitely bring a lawsuit against the professional manager based on the interests of the general public (or small and medium shareholders) until his family is ruined and his wife and children are separated.What I said was not a joke at all. You can understand it by looking at the Enron incident. In the end, Enron went bankrupt, Andersen of the five major accounting firms also went bankrupt, and the partner committed suicide. Under the measures taken by the U.S. government, the big families sold their stocks at high price-earnings ratios and withdrew from the operation and management of listed companies one after another (and richly). As a result, listed companies in the U.S. became companies with public shares.The U.S. government supervises through the Securities and Exchange Commission strict laws and regulations to ensure that professional managers have a fiduciary responsibility to ensure that the information he discloses is true, and if there is any false, it will be severely punished.That's why Worldcom was punished severely for a small incident.The crime WorldCom committed was to change some accounting items, changing the items that were originally expenses into investment, and to list the expenses through depreciation.This kind of thing is a trivial matter in our country, and no one cares.It is not allowed in the United States, because you have violated one of the most important principles - the authenticity of information disclosure.For this small incident, the person in charge was arrested.At that time, American TV news would repeatedly broadcast a scene every night: judicial officers handcuffed the hands of the head of WorldCom behind his back, and "paraded the streets" for several weeks.The U.S. government wants all Americans, from infants to old men, to see clearly that this is what happens when you violate your fiduciary duty & let every American child know what you will do when you grow up It means having a fiduciary duty to shareholders. If you fail to do so, parading in the streets will be your fate. This is of great significance!It is because of the U.S. government's "people-oriented" strategy that the U.S. stockholders, or even the general public, have strong confidence in the U.S. federal government.They know that if their rights and interests are challenged, the U.S. government will stand up and use harsh laws to protect vulnerable groups, small and medium shareholders, and ordinary people across the country, because the people-oriented system cannot be challenged. As long as this cannot be achieved, Marx's prophecy will surely come true.This is the greatness of Marxism. Every ordinary person in the United States puts his life's wealth in the stock market through insurance and pensions.Due to the continuous expansion of the US population, the investment in the US stock market is constantly increasing, and the stock price will rise in the long run.There are a lot of absurd words in our country, saying that "the stock market is risky". Let me tell you, that is wrong. The stock market only has short-term risks and should not have long-term risks.Because what the stock market reflects is the economic strength of the country, this is called the stock market.Think about it, everyone, when big families withdraw from the stock market one after another, if listed companies in the United States go public one after another and become public-owned companies, what does this mean?This is what symbolizes the realization of a socialism!Do you think it's funny?Because you don't understand the original meaning of the stock market.All the big companies in the United States are listed, and they will disclose information truthfully. If they do not do well, they will delist, and if they do well, they will stay in the stock market and continue to create wealth for shareholders.It is characterized by the fiduciary duty that is necessary under the severe penal laws of the United States.Shareholders can get rewards in the stock market.How to get rewarded?If a listed company earns $1, the wealth can be magnified through the price-to-earnings ratio.The price-to-earnings ratio in the United States is generally 30 times, that is to say, if any listed company makes a profit of one dollar, then the shareholders can get a return of $30.In other words, if the U.S. economy makes a profit of one dollar, then there will be $30 returned to the common people in the United States!Therefore, in the 50 years from 1930 to 1980, the annual return of the US stock market was 8.3%. Adding the bank interest rate, it means that if the bank interest rate is 3% in a certain year, then the return rate of that year is 8.3%. That's 11.3%.In the 50 years from 1940 to 1990, the U.S. stock market was growing at an annual rate of return of 7.6%, plus bank interest rates, as long as every citizen in the U.S. puts his pension and insurance funds into the U.S. stock market In the middle, then after 35 years of retirement, you can have a good old age and a good old age.Therefore, it is impossible for terrorists to destroy the United States, and the collapse of the stock market is a major blow to the United States.The stock market in the United States undertakes the great function of redistribution of wealth in American society. You can imagine that if all the listed companies in the United States were public-owned companies, assuming that their managers were all managers with fiduciary responsibilities, after each person became a company manager, he would work hard for his own small and medium-sized enterprises. A stockholder contributes his whole life, he takes the generous salary and pension he deserves, and the American stockholders get the fruit of the American economic growth by multiplying 1 dollar he earns by 30 times. This is the real sense of hiding wealth Yu Min. In order to ensure the implementation of this policy of hiding wealth from the people, and to ensure that the relationship between capitalists and labor is no longer tense, the US government has given the SEC the power to enforce the law in the form of the Constitution rather than general federal laws.According to the law, in order to protect small and medium shareholders and the stock market, the SEC can issue subpoenas, investigate anyone and anything, and its law enforcement powers are unlimited.Anyone who challenges it will basically be rejected by the federal courts.Do you know why?The reason is that the US stock market shoulders a socialist function - the redistribution of wealth.The U.S. Constitution, that is, the fundamental law of the U.S., has endowed the U.S. Securities Regulatory Commission with the enforcement function of harsh laws.Look!What a grand plan, which is why American citizens are willing to put their life savings in the US stock market.Because they know that only through the stock market in the United States can their wealth grow continuously, so that they can have a certain life and support for their old age. "Fiduciary duty" slowly affected continental European countries.The courts of the European OECD member states have basically accepted the concept of "fiduciary duty", but how it is implemented and punished varies from country to country.Generally speaking, the concept of fiduciary duty in the UK currently focuses on protecting small shareholders.While other continental European countries accepted the concept of fiduciary duty, they entered a governance structure that was completely different from that of the United Kingdom. According to Roe (2000), the concept of "fiduciary duty" began to diverge between Britain, the United States and continental European countries in the late 19th and early 20th centuries.The United States pays more attention to the display of individualism, that is, an individualistic democratic system; while European countries have gradually entered a socialist democratic system.These two doctrines have a great impact on the form of the company. Continental European countries attach importance to socialism, so the implementation of economic policies often must take into account the welfare of labor.For managers, what they need may be: to expand the company's scale; to reduce the risk of pursuing profit maximization so as not to be affected; to use equity capital first and try not to carry out risky corporate restructuring.These ideas must conflict with the interests of shareholders.But what workers want is similar to what managers want. For example, they don't want companies to face higher risks, because high risks may affect their job stability; they also want companies to expand rather than downsize. Small scale, because then they can get more opportunities for promotion and salary increase.As for shareholders, they definitely don't like to pay high wages, but the ultimate power to pay wages is still in the hands of managers, and managers will never hate raising wages for workers like shareholders.At the same time, the governments of continental European countries are elected by the people, so they attach great importance to the votes of workers.Therefore, when governments consider economic policies, whether it is the Conservative Party or the Labor Party, they must put the interests of labor first (but the two parties attach different importance to labor), rather than the interests of capitalists.Under the dual pressure of labor and the government, managers gradually moved to the side of labor, and gradually deviated from the interests of shareholders.The result of this is that the agency cost (Agency Cost) has increased significantly.Moreover, in order to maintain the stability of the working class, European countries have little interest in incentive contracts (including company mergers, etc.), transparent accounting systems, and even legislate to prohibit them.In this way, the distance between managers and shareholders is further expanded, thereby increasing agency costs. The American system is different.The US immigration policy has resulted in the mobility, diversity and individualism of the people, which has affected the connection between people.There is only a contractual relationship between the company's shareholders, managers and labor, and there is a lack of loyalty.The performance of managers is also objectively evaluated by the market.If the company does not pursue profit maximization, resulting in poor management and a sharp drop in market value, it may be hostilely acquired by other companies, and the manager will be dismissed and replaced by a more capable person in order to increase the value of the company [ See Jensen, Ruback (1983), Palepu (1985), Morck, Shleifer, Vishny (1988, 1989), Martin McConnell (1991)].As far as Britain and the United States are concerned, this kind of acquisition has effectively strengthened corporate governance and thus protected small shareholders [see Manne (1965), Jensen (1988), Scharfstein (1988)]. , but this kind of hostile takeover is still politically difficult to navigate, because everyone fears that the managers will be fired and the company will be closed and sold off.Therefore, many states in the United States have gradually implemented legislation to prohibit hostile takeovers.By the 1990s, the days of such hostile takeovers were over [Jensen (1993)]. In order to evaluate a company effectively and objectively, a transparent accounting system can reduce the cost of objective evaluation.Moreover, since small shareholders enjoy the right to collective action, the manager's "fiduciary responsibility" is further strengthened.At the same time, the US government's requirements for fiduciary responsibility are much higher than those of European governments for enterprises.For example, in order to strengthen fiduciary responsibility, the U.S. government required company managers to swear an oath on the authenticity of the company's accounts after the "Enron" and "WorldCom" incidents. This is a concrete manifestation of fiduciary responsibility.But in Asian countries, it is difficult for us to understand the specific meaning of this oath.Because we Asians always think that American companies can make false oaths while swearing. 而且由于个人主义的极端漫延，美国劳工对于企业追求利润最大化的思维也较易接受。由于经理人与股东追求利润极大化的思维类同，因此代理成本大幅减少。 而这两个区域（美国与欧洲大陆）代理成本的高低塑造了股权分散以及股权集中的温床。在代理人成本较高的欧洲大陆，每单位资产市值必然较低，因此大大打消了私营企业上市的念头，这也是为什么欧洲大陆各国的股票市场不如英、美发达的原因之一。但就算上了市，也必须有一个大股东能随时监督经理人，否则由于经理人与劳工或政府的思路太接近，而无益于股东的利益。 以德国为例，德国公司董事会有两个层次，其中一个是顾问董事会（Supervisory Board），按规定其组成人员中必须有一半是劳工代表。股东为了避免劳工代表找麻烦，因此召开董事会的时候非常形式化，事先也不派发议程，会计账目不清楚，而且一年只召开两次会议。如果公司账目太清楚地显示高利润的话，可能就会发生劳工要求扩大生产规模以及加薪等等烦人的事情。但私下里大股东就可以和经理人经常沟通，纠正其政策思路，否则无益于股东的利益。试想一下，如果所有的股东都是小股民的话，那么谁来监督经理人呢？这种环境必然会慢慢孕育出股权集中的企业。 但美国的情况就不同了，美国企业代理成本低，而且美国施行严刑峻法以保护股民的利益，并对家族企业大加挞伐以减少垄断，希望建立一个自由竞争的经营环境。例如美国司法部利用《反托拉斯法》控告微软，因为微软垄断性太强，影响了自由竞争。这种思维在欧洲大陆或是亚洲是不可能被理解的。举例而言，在20世纪，美国很多大家族隐名埋姓纷纷成立信托基金（Trust）以遥控企业。各位读者如果记得我们前面谈的美国《反托拉斯法》的英文是什么（Anti Trust Law），那么也就会明白什么是反家族垄断。在此种压力下，私营企业家族希望上市套现，而且由于代理成本很低，每单位资产市值必然较高，这更增加了企业上市的诱因。此外，由于代理成本很低，小股民也愿意进场，因为他们本身不需要监督经理人，外在环境会纠正经理人追求股东利益最大化的行为。因此形成了股权分散的温床。La Porta et al.（1998）对于普通法推崇备至的原因即在于其能保护小股民并能建立起一个繁荣的股票市场。 那么亚洲国家的股权为何也是那么的集中呢？欧美各国发展现代化企业的时候，亚洲各国基本上还是蛮荒一片，制度落后，政府腐败，盗匪横行，贪官污吏遍地，民不聊生。我想用这些字句描述亚洲各国二战前后的情形应该是比较切合实际的。在这种落后的制度下，最有效率的企业一定是股权集中的家族企业。家族可以通过家族网络共同经营，贿赂官员，保护企业以及组成联盟抵御外侮。因此，亚洲各国自然地形成了家族企业。而且由于家族共同经营的传统必然形成相互观照的局面，这种心态与欧美各国的“信托责任”心态是截然不同的。 为了证明我的观点，我将世界银行所发布的三个指标——审判系统的有效性、法治化和政府腐败标注在图1的纵轴上，另外我将东亚最大的15个家族控制市值的比例标注在横轴上。读者可以很清楚地看出来，如果审判系统越无效，越缺乏法治化，政府越腐败，那么家族控股比例就越高。 欧美各国的股东有着信托责任，因此二股东常常会反对大股东，因而保护了小股民。但在亚洲各国，大股东、二胶东会联合起来坑害小股民［参见Faccio、Lang，Leslie（2001）］。这种家族企业上市以后，它们所在乎的仍然是自己家族的利益，因此各家族会联合起来图利，剥削小股民。这也正是亚洲家族企业上市的重要目的。 最后，我想谈一下日本。日本是一个很奇怪的国家，它的各项制度与其他国家的都大不相同。他们的自民党政府名义上是保守政府，但骨子里却是真正的社会主义的民主政府。最好的例子就是他们为了保护农民，而不遗余力地禁止美国农产品的进口。而且日本的终身雇用制度也是社会主义的极致表现。但根据以往研究结果来看，日本的股权结构反而更倾向于分散持股的类型。但事实上并不是如此。日本商社均由大银行控股，虽然每家银行对商社公司的控股不超过5%，但却是数家银行共同控股商社公司。因此，银行控股总和是相当高的，以富士银行为例，可以看到富士集团内部仍有相当多其他银行控股该商社的公司。 日本和英、美、欧洲等国的情况不同，它没有政府的监管。但日本人却有着一种不同的信托责任，那就是日本人对工作认真的态度。每一位日本人都想在本位内把自己的责任尽到最好。但是公司经理人对小股民是什么态度呢？根据亚洲开发银行总裁Yoshitomi先生的调查来看，日本经理人最重视的还是劳工的利益。因此，日本的企业结构更类似于欧洲大陆国家。由于经理人重视劳工利益，所以必然会轻视股民的利益。这也就是日本的代理人成本很高的重要原因之一。但如果说控股银行和经理人联手剥削日本的股民，那是不太可能的。至少到目前为止没有一份研究报告能够提供这种剥削股民的证据。 我们前面分析不同的国家谈论公司治理的五个基础为：第一个基础是普通法的公平概念被引入；第二个基础是信托责任；第三个基础是严刑峻法以保障公平；第四个基础是严刑峻法保证信托责任的推行；第五个基础是社会主义式的民主制度。当然中国的国情和它们有所不同，我们必须有所取舍。我认为第一个和第二个基础是英国特殊历史所形成的普通法的公平概念和历史传承的信托责任，中国没有这种历史，因此它们不适用于中国。我认为第三个、第四个和第五个基础比较适合中国的国情。也就是筹建一个社会主义式的民主制度，通过政府的干涉以严刑峻法的理念推动公平和信托责任的确立。 1932年，伯利（Berle）和米恩斯（Means）两位教授合写了一本关于美国股权结构的书。他们提出了一个非常有意义的观点，就是当时美国的上市公司基本上都是大众持股型公司，但是大众持股型公司基本上都是管理权与所有权相分离的，所谓的所有权即是指股权很小的股民，管理权即是指（几乎）无股权的职业经理人。他们指出，经理人有图利自己而不替股东谋取利益的嫌疑，因此他们发现，真正的矛盾来源于股东和职业经理人。这本书把资本家和劳工之间的紧张关系转换为股东和职业经理人之间的关系。他们把矛盾进行了转移。而他们的这种做法受到了美国政府的支持，但是却引起了我的怀疑。 因为我在2005年重新研究伯利和米恩斯当时所用的数据［Gadhoiim、Lang，Young（2005）］时，我发现他们的数据中没有多少家他们所谓的大众持股公司，他们书中有200个样本公司，但是证据确凿的大众持股公司只有44个。而且200家公司中有106家是工业公司，而这106家工业公司当中竟然只有4家是大众持股公司。也就是说美国现在这么普遍的大众持股公司的现象，在当时并没有出现。 但是，其后又有两篇论文对伯利和米恩斯的数据提出了质疑，Rochester（1936年）和Lundberg（1946年、1968年）指出一群非常少数的大家族通过他们本身的持股和他们所控制的银行间接持股控制了美国的工业体系（请参见1946版本的Lundberg）。Lundberg分析了与伯利和米恩斯所引用的200家相同公司的资料，他指出很多公司的管理层甚至董事会成员都是由背后的大家族指派的。 那么，伯利和米恩斯当时写这本书是什么目的呢？无可讳言，这本书为美国政府未来引领美国上市公司走向大众持股提供了方向性的指示。但是更重要的是，美国政府为了缓和马克思主义带来的冲击，除了通过反托拉斯法和财富再分配来缓解和消除劳资纠纷之外，更是提出了股东和职业经理人之间的紧张关系，以图转移劳资纠纷对美国社会的冲击，而使得大众以及学术界将注意力集中到了公司的层面。通过一系列的“公司治理”措施，最终也把股东和职业经理人之间的紧张关系化解掉。这使得紧张变成了祥和，成本变成财富。这个转移很重要，这是“公司治理”这一伟大课题的开始。我们可以这么说，公司治理的目的就是探讨如何监督职业经理人以图利小股东。我本人在公司治理的文献中也起了较重要的作用，我将我的论文以我的英文名字Larry HP Lang适当地嵌入文献当中，读者可以清楚地看出我在其中的贡献。