1、本科畢業(yè)論文（設計）外 文 翻 譯Recent Developments of Internal Corporate Governance Structures in Germany, the United Kingdom, France, and ItalyThe struggle for efficient internal management control is the centre of the corporate governance debate in Europe since the incorporation of the Dutch Verenigde Oostindis

2、che Compagnie in 1602. Recent developments in Europe illustrate a trend towards specialized rules for listed companies and indicate growing convergence of internal control mechanisms independent of board structure.The revised Combined Code in the United Kingdom and also the French revised Principles

3、 of Corporate Governance, both of 2003, strengthen the presence of independent directors on one-tier boards in Europe. Another systemic break-through for the two-tier board model is the growing tendency to separate the positions of CEO and board chairman. For the German two-tier structure, the stren

4、gthening of the strategic role of the supervisory board (Aufsichtsrat) by the new German Corporate Governance Code of 2002 means an attempt to incorporate a key advantage of the one-tier model. Similarly, the control duties of the Italian internal auditing committee (collegio sindacale) were extende

5、d by the Testo Unico of 1998 and bring the Italian second board closer to the German supervisory board.The common trend to stricter standards of independence is challenged in Germany by its rigid concept of co-determination and, to a lesser extent, by the more flexible model of labour participation

6、in France. Directors duties and liabilities and also derivative actions are a focus of the reform debate in Germany since 1998 and are currently under review in the United Kingdom. After the Enron debacle the interplay between internal control devices and independent external auditing has become a m

7、ajor focus of interest in all countries considered. Driven by Anglo-Saxon codes of conduct audit committees today serve as a common denominator for good corporate governance.Though formal convergence is strong company organs in each country take on their own specific garment. Path dependent system d

8、evelopment especially depends on shareholder structures and banking systems. The trend to greater structural flexibility on board level is strongly triggered by the introduction of a threefold board model choice under the French Loi Nouvelle Régulations Economique of 2001 and under the Italian

9、Vietti-Reform that is in force since January 2004.Internal Controls and Auditing in the GermanyRecent proposals on improving internal control plead for an increase of approval rights of the supervisory board. The success of both stronger involvement in management decisions and the strengthening of c

10、ontrol efficiency as a whole depends foremost on the level of information. The functioning of information systems as they exist under the law or as recommended by the German Corporate Governance Code is strongly determined by the two-tier structure. The exclusion of the supervisory board from manage

11、ment and its limited rights to obtain information directly from executives can make it difficult for its members to develop an objective picture of the companys performance.The interplay of the supervisory board and external auditing is a central point of the corporate governance debate. Under the t

12、wo-tier system, internal control is an instrument of the management board and confidence must not be undermined by the supervisory board or its committees. Further, the law does not allow audit committees to take over resolution power in matters reserved for plenary decisions of the supervisory boar

13、d, as is the case with the approval of the annual accounts.Hence, the primary function of audit committees in German companies is the coordination of control, revision, and auditors. The role of the audit committee is vital, though, as it supervises the independence of the auditor. The German Corpor

14、ate Governance Code recommends that the auditor deliver a detailed statement of independence to provide the basis for a proper election by the general meeting. By law, an auditor who has earned more than 30% of his or her total earnings exclusively from one company in the last five years is ineligib

15、le, and the report cannot be signed more than six times by the same person. Mandatory rotation of the auditing firm itself has been rejected up to now, but it may be a reform discussion again after the Enron case.The external auditor is elected by the general meeting, and thus primarily serves as a

16、control device of shareholders. However, the role of the auditor as a “partner” of the supervisory board has also been strengthened several times. As a consequence of the KonTraG reform in 1998, the supervisory board concludes the auditing contract and confers the auditing mandate, which should cove

17、r all matters relevant to the work of the supervisory board. Information flow was triggered by the KonTraG because the auditing report is directly handed over to the supervisory board, and the auditor has the duty of taking part in the meeting on approval of the annual accounts. Further, the auditin

18、g mandate was extended; in addition to the checking of the accounts, it now includes the control of the risk management systems. The mere formal check of the statement of compliance appears somewhat toothless, although it has to be noted that the auditor must express doubts in the auditing report sh

19、ould he come across irregularities that question the substance of the statement. Any further extension of the auditing mandate to business matters was rejected by the Regierungskommission due to the fear that this could lead to a disadvantageous discharge of the supervisory board or even push it awa

20、y from the exercise of its control duties.Internal Controls and Auditing in the United KingdomThe system of internal controls as promoted under the Combined Code includes the group wide supervision of financial, operational, and compliance controls and risk management. Its effectiveness is to be rev

21、iewed at least annually, and the results of the review have to be reported to shareholders. The task of the audit committee is to set the scope and to review the results of the audit, its cost effectiveness, and the independence and objectivity of auditors. It further reviews the financial relations

22、hip between the company and auditors. Again a flexible approach is sought in that the Combined Code states that if non-audit services are also supplied, the committee must seek to balance objectivity and value for money. The increased awareness of the importance of risk management and auditing is hi

23、ghlighted by the Turnbull Guidance on Internal Control and the Smith Guidance on Audit Committees; both annexed to the revised Combined Code.Auditing scandals are not unknown to the United Kingdom. The famous Caparo Case of 1990 has become a milestone for auditor liability and, more general, for the

24、 tort of negligent misrepresentation. It is a striking argument for the effectiveness of the self-regulatory approach that the Cadbury Committee was set up with the strong participation of the accounting profession. Like their German colleagues, auditors in Britain are elected by the general meeting

25、 and thus primarily serve as a control device of the companies members. A proposal has been made to take up the common practice of directors being authorised to fix auditors remuneration and to confer the powers from the shareholders to the board. The contents of the auditing mandate follow from the

26、 law and primarily include the check of whether the accounts give a true and fair view of the companies business. An innovation in the field of transparency will be the Operating and Financial Review (OFR), which will be prepared by companies with significant economic power. The OFR will contain spe

27、cific information not only on the past but also on the expected future performance and business strategies of the company. It will thus go beyond the directors report it replaces, which only covered the past. Similar to the assessment of risk management mechanisms by German auditors, reporting on th

28、e OFR does not require auditors to second guess directors business judgements. Instead, they will check whether an appropriate procedure was followed. Fears similar to those of the German Regierungskommission were expressed in regard to an extension of the auditing mandate: any additional verificati

29、on of the discharge of the boards responsibilities might detract from the directors sense of responsibility. It is apparent, however, that the extension of auditing to the future-oriented OFR already goes beyond the mandate of German auditors.Recent Developments in France and ItalyRecent reforms in

30、France and Italy indicate a strong movement towards organizational flexibility at the board level and impressively illustrate the tendency towards a clearer distinction of management and control. Already in France in 1966, a choice between the one-tier model with the conseil dadministration on top a

31、nd the two-tier model with the conseil de surveillance as the second board was introduced. The two-tier structure, which is closely tied to the German supervisory model, is infrequent but not unsuccessful: the two to three percent of all stock corporations that have opted for it make up twenty perce

32、nt of the CAC 40 companies, and most of them are of international stature. The most recent development in the corporate governance of listed companies concerns the Principes de gouvernement dentreprise (Principles for Corporate Governance) of October 2003. Similar to the situation in the United King

33、dom and in Germany, business matters that require prior approval of the board should be specified. The code stresses a directors competence and experience as key qualities that should be regarded separately and in addition to independence. Similar to the approach of the Combined Code the general def

34、inition of independence is supplemented by specific examples that indicate non-independence. Interestingly for Germany, representatives of banks with which the company is closely tied are explicitly mentioned. Also the French code lifts the proportion of independent directors from one third to half

35、of the board. Further, the representation of independent directors in the compensation and audit committee is strengthened but remains below the standard of the Combined Code. For the compensation committee, only a majority of independents is recommended (Combined Code: exclusively independents). Fo

36、r the audit committee, the proportion of independent directors should be lifted from one third to two thirds (Combined Code: exclusively independents). In regard to external auditing, the recommendations envisage meetings of the audit committee and the external auditors without executives. Despite i

37、ts cost intensity, the system of dual auditor ship will be kept.In Italy, the Testo Unico of 1998 introduced specific rules for listed companies. Following the traditional structure, the company will be run by the consiglio di amministrazione. A mandatory second board, the collegio sindacale, will s

38、erve as an internal auditing device. An innovation is the extension of the tasks of the collegio sindacale to the supervision of compliance with laws and articles, of the organisational structure, and the accounting system. Further, the Testo Unico led to a clear distinction between internal and ext

39、ernal auditing in that the direct auditing mandate is shifted to the external auditors. The extension of the control duties brings the collegio sindacale close to the German supervisory board. However, its control duties do not include business strategy and thus do not involve a strong advisory func

40、tion. With internal auditing, the sindaci have a clear advantage compared to their German colleagues because they are still chartered accountants. Further, control competences include the right to issue orders to employees and thus are wider than those of the German supervisory board. As a safeguard

41、 for the capital market, the collegio sindacale must notify the responsible authority of irregularities.Independence primarily means the personal incompatibility of parallel membership in the collegio sindacale and the consiglio di amministrazione. An important distinction in regard to a German co-d

42、etermined supervisory board follows from the fact that an employee cannot become a member of the collegio sindacale. The Codici di Autodisciplina (Code of Conduct) issued by the Italian Stock Exchange recommends an “adequate” proportion of non-executive directors, the number to be determined by each

43、 company, particularly according to shareholder structure. The refined rules on independence are comparable to those of the Combined Code and to the French code in that they provide specific examples that indicate nonindependence. An internal control committee is recommended with the task of giving

44、advice and making proposals to the board, particularly in the field of risk management. It should be composed of non-executives, the majority of whom are independent. Participation of the chairman of the collegio sindacale is perceived to be useful, especially because the committees tasks involve th

45、e assessment of accounting standards together with external auditors.Source: Klaus J. Hopt, Patrick C. Leyens,2004”Board Models in Europe .Recent Developments of Internal Corporate Governance Structures in Germany, the United Kingdom, France, and Italy”. Law Working Paper, no.18, January, pp2-3.德國，英

46、國，法國和意大利公司的企業(yè)內(nèi)部治理結(jié)構(gòu)的最新發(fā)展事態(tài)自從在歐洲的荷蘭東印度公司于1602年注冊成立，高效的內(nèi)部管理控制的斗爭，就是在公司治理辯論的核心。最近在歐洲的研究表示說明一個對上市公司的專門規(guī)則的趨勢，并指出越來越多的內(nèi)部控制機制，獨立的董事會結(jié)構(gòu)趨同。修訂后的綜合守則在英國和法國也修改了公司治理原則，加強了在歐洲的獨立董事這一層板的存在。兩層板模型的另一種系統(tǒng)性突破是分離CEO和董事會主席的職位成了一種不斷增長的趨勢。對于德國的兩層結(jié)構(gòu)，2002年新的德國公司治理準則對監(jiān)事會（德國公司監(jiān)事會）戰(zhàn)略地位的加強，意味著企圖納入一層模型的一個關(guān)鍵優(yōu)勢。同樣，在1988年德國商聯(lián)公司延長了意大

47、利內(nèi)部審計委員會（意大利監(jiān)事會）的管制工作，并促使了更接近德國監(jiān)事會的第二板。嚴格標準的獨立的共同趨勢在德國受到共同決定的死板觀念地挑戰(zhàn)，并在較小程度上，在法國由勞動參與的模式更加靈活。董事的義務，責任及其衍生的訴訟行為自1998年來已成為德國改革爭論的焦點，并且目前英國也正在審查這些內(nèi)容。安然公司崩潰后，內(nèi)部控制設備和獨立外部審計之間的相互作用已成為所有國家利益考慮的重點。今日審計委員會所制定的盎格魯撒克遜代碼已作為良好企業(yè)管治的主導因素。盡管正式的融合是每個國家中強大的企業(yè)機構(gòu)采取各自的具體形式。路徑?jīng)Q策系統(tǒng)的發(fā)展，尤其依賴于股東結(jié)構(gòu)和銀行系統(tǒng)。插板層次更好的結(jié)構(gòu)靈活性趨勢是三倍板模型的選

48、擇是根據(jù)法國新經(jīng)濟條例法和意大利自2004年1月的改革。德國的內(nèi)部控制與審計改善內(nèi)部控制的最新建議為同意增加監(jiān)事會的審批權(quán)。在管理決策和控制效率上同時有力地參與的成功，最重要是依賴信息化水平。該信息系統(tǒng)運作由兩層結(jié)構(gòu)所決定，它們存在是根據(jù)法律，或根據(jù)德國公司治理準則的建議。排斥監(jiān)事會管理和直接從高管獲取信息的有限權(quán)利會讓其成員難以對公司業(yè)績有客觀了解。對監(jiān)事會和外部審計的相互作用是公司治理辯論的中心。在兩層系統(tǒng)中，內(nèi)部控制是管理委員會的手段，信心絕對不能受到監(jiān)事會或委員會及其損害。此外，法律不允許審計委員會來接管監(jiān)事會全體決定保留的決議事項，與批準的年度帳目一樣。因此，在德國公司，審計委員會的

49、主要職能是協(xié)調(diào)控制，修改，及審計師。審計委員會的角色是至關(guān)重要的，因為它要監(jiān)督的審計師的獨立性。德國公司治理準則建議審計師提供一個具體的獨立申明，為大會提供一個適當選擇的基礎(chǔ)。根據(jù)法律規(guī)定，在最近的5年內(nèi)，僅從一家公司獲得的收入占其總收入的30以上的審計師是沒有審計資格的。同一人不能簽署報告6次以上。強制輪換審計公司至今仍被駁回，但是可能在安然事件之后重新被探討。外部審計師由股東大會選舉產(chǎn)生，因此是作為股東的主要控制手段。然而，審計師為監(jiān)事會“合作伙伴”的角色作用也多次得到加強。作為1998年KonTraG改革的結(jié)果，監(jiān)事會總結(jié)了審計合同，賦予審計任務，這應涵蓋所有監(jiān)事會工作的有關(guān)事項。信息流

50、的起因是KonTraG，因為審計報告直接交給監(jiān)督委員會，審計師有責任參加批準年度賬目的會議。此外，審計的任務期限延長，除了對賬目檢查，現(xiàn)在也包括了風險管理系統(tǒng)控制。僅僅要求對遵守聲明的正式檢查顯得有些軟弱無力，但它必須指出的是，審計人員必須在審計報告中表示懷疑，當他遇到這一申明實質(zhì)問題的謬誤。政府委員會否決了對于進一步擴大審計任務的業(yè)務事項，由于擔心這可能會導致監(jiān)事會不利履行職責，甚至將其推離控制職責地行使。英國的內(nèi)部控制與審計在綜合制度地推動下，內(nèi)部控制制度包括了整個集團的財務，營運，合規(guī)監(jiān)控及風險管理地監(jiān)督。它的有效性至少每年進行審查，其審查的結(jié)果應報告給股東。審計委員會的任務是設定范圍，并審查審計的結(jié)果，其成本效益，以及審計師的獨立性和客觀性。它進一步回顧了公司和審計師之間的財務關(guān)系。綜合守則在尋求另一個靈活的做法中指出，如果也提供非審計服務，該委員會必須設法平衡資金客觀性和價值。特恩布爾的內(nèi)部控制指導和史密斯的審計委員會指導兩書中，突出了對風險管理和審計的重要性的意識地提高，他們都是重新修訂后的綜合守則的附件。 英國對審計丑聞知之甚少。