关联交易及利润操纵的英文文献就(带中文译文).doc

1、浙江工业大学法学院上市公司关联交易中利润操纵的法律问题研究 THE PROFIT AND ITS MANIPULATIONMasca Ema Universitatea “Petru Maior”, Tg. Mures, bld. 1 Decembrie 1918, nr. 13/10, 0265266237, E-mail: masca_emaIn the light of recent corporate scandals, accounting today as an objective way of presenting economic reality is suffering fr

2、om a real crisis of confidence. Central to the Anglo-Saxon system of corporate governance, it has been pushed into the public spotlight, where its impartiality and objectivity is being questioned.Keywords: profit, manipulation, managementThe Positive Accounting Theory and profit manipulationEven tho

3、ugh most of the scandals have taken place in the United States, the crisis of confidence has had an impact far beyond U.S. borders, as the Anglo-Saxon system of governance is spreading throughout continental Europe and particularly in France. In order to contain the crisis, the United States and Fra

4、nce are committed to institutional and legal reform. Moreover, those identified as having perpetrated such manipulation, essentially auditors and financial directors, have been legally sanctioned. We should nonetheless question whether these legal and legislative measures will be sufficient to resto

5、re long-term confidence in the system. Bernard Collase is asking himself if shouldnt the social dimension of the issue be taken into account? Isnt it necessary first to understand the reasons behind profit manipulation and how it functions before changing legislation?Tenants of Positive Accounting T

6、heory have represented the mainstream of accounting research since the early 80s. They see profit manipulation, which they euphemistically call “earnings management”, from an exclusively economic standpoint.How and why do management controllers take part in profit manipulation?That shareholder press

7、ure leads management controllers to manipulate their firms profits. Going beyond individual responsibility, the organization imposed on a company by its shareholders with the aim of respecting criteria of Anglo-Saxon corporate governance is itself the cause of accounting manipulation at all levels.F

8、irst, we will define the notion of “earnings management”, present a range of practices, and assess the role of management controllers in this phenomenon. We will observe that management controllers implement different methods for manipulating profit.Skill in profit manipulation enables management co

9、ntrollers to gain legitimacy in the eyes of managers working in a cultural context that is traditionally difficult for them. They soon become indispensable strategic allies playing the role of arbiter between the markets short-sightedness and the imperatives of operational management.Schipper propos

10、es a representative academic definition of profit manipulation that she refers to as “earnings management”, similarly to the vast majority of literature on this subject. She defines profit manipulation as: “a purposeful intervention in the external financial reporting process, with the intent of obt

11、aining some private gain”. Healy and Walhen identify two main incentives for profit manipulation: contracts written in terms of accounting numbers; and capital market expectations and valuation.The first perspective is supported by the tenants of Positive Accounting Theory. They suggest that contrac

12、ts between the firm and its stakeholders create incentives for earnings management. Precisely, they propose three hypotheses: the bonus plan hypothesis (directors who benefit from bonuses tied to profits are more prone to using accounting techniques that transfer future profits into the present); th

13、e debt/equity hypothesis (the more a company is in debt, the more it is in its interest to focus on present earnings because debt covenants, common in the United States, require certain levels of profitability); and the political cost hypothesis (the larger a company, the more it is in its interest

14、to postpone its profits until a future accounting period to face any risk of burdensome legislation being implemented).The second perspective suggests that the goal of earnings manipulation is to be in line with the expectations of the financial markets. Dechow and Skinner underline that academics h

15、ave mainly focused on contractual incentives, much more than on the influence of capital markets on earnings management and that “this focus has been sustained by the assumption that markets are efficient”.Profit manipulation can take two forms: earnings management and falsification. Earnings manage

16、ment involves postponing the period affected by an operation by changing the measurement methods, speeding up a sale or delaying a purchase.Here, we can make out in the background earnings management as limited to manipulating accounting figures,rather than to profit manipulation that involves actin

17、g on real business situations. Falsification involves disclosing wrongful data. In this case, such actions may be considered criminal. However, the fine line between these two types of manipulation remains blurred.Several profit manipulation strategies can be applied: smoothing reduces the variance

18、of earnings and therefore to reduce perceived risk; big bath accounting wipes the slate clean for a new appointed director; or quite simply opportunistic management, the phenomenon supported by tenants of Positive Accounting Theory.Some of these techniques are the privilege of “headquarters” level,

19、i.e. boardrooms deciding to manipulate corporate results so that consolidated accounts provide the “expected” figures. Other practices presented beloware also used at other levels in the organizations.Positive Accounting Theory researchers almost exclusively focus on top-management level profit mani

20、pulation.We deny the hypothesis according to which the director is alone in making accounting decisions. Internal contracting, most often covered in Positive Accounting Theory, deals with the compensation hypothesis. In this area, results from different studies are contradictory. Few studies in the

21、context of Positive Accounting Theory look at internal earnings management. Smoothing could be destined to (1) external users of financial statements, such as investors and creditors, and (2) management itself. More specifically, as far as management is concerned, it should be noted that the motivat

22、ion to smooth income is not confined to top management. Lower management may attempt to smooth to look good to the top management. They may try to meet predetermined budgets, which in addition to serving as forecasts, also act as performance yardsticks. That most business unit managers manipulate th

23、e performance of their units.There are few empirical studies on internal profit manipulation. Pressure to reach net earnings or budgeted expenses encourages managers to move earnings from year to year by manipulating the accounts. That profit manipulation depends in large part on the forecasting pro

24、cess. In fact, at each level in the organization expectations may be established in one of three ways. Firstly, an independent estimate can be reached independently from any other in the organization. Secondly, an estimate can be reached by aggregating estimates made by lower levels in the organizat

25、ion. Thirdly, an estimate can be reached by disaggregating a higher level estimate. That one response to failure in reaching forecasts is creative book-keeping - there was evidence of a cross allocation of costs in order to protect units from external criticism and to protect reputation.The organiza

26、tion of such protection was an imaginative task for the accounting staff.Lastly, another factor which explains profit manipulation: the result of these case studies indicates that the interdependence of forecasts at different levels when forecasts have been made by disaggregating may encourage manag

27、ers to take a series of defensive positions and make the information and reporting systems opaque. How much profit manipulation takes place does not only depend on how accounting is used to evaluate the performance of managers and their pay but also how forecasts are made that will be used as a base

28、line for such performance appraisal. Thus, the remuneration hypothesis put forward in the Positive Accounting Theory does not suffice to explain internal profit manipulation.The agency model in a French contextProfit manipulation performed by management controllers must be put in perspective. The An

29、glo-Saxon model of corporate governance is consistent with a specific cultural context, and lends factual data, and therefore accounts, a special status. Indeed, the American approach to collecting and handling factual data is intimately tied to the American way of life. Judicial or quasi-judicial p

30、rocedures, which are held in high esteem, give fundamental value to material proof. The way data is collected and used reflects the American preference for accounts that everyone should render public. Accounting statements correspond perfectly to this way of thinking.The French distinguish two roles

31、 factual data is likely to play: enabling us to understand better how things work; and providing a means of assessing people. In the French system, confusing these two roles (which is perfectly legitimate in the United States) generates resistance. The controllers sense of responsibility alone (mean

32、ing what he feels responsible for, and not what he needs to account for) makes him pay attention to information he receives. The French model hardly encourages us to judge each person on the basis of such data and is opposed to superiors demanding accounts that are too stringent. That subordinates may protect themselves from all hierarchical “interference” by surrounding their activity in a shroud of opacity is not considered an illegitimate act.As a consequence, it is the legitimacy of accounts that lies at the heart of the debate in a French context. In general, accounts can