董事会构成与财务报表舞弊之间关系的实证分析.doc

本科毕业论文（设计）外 文 翻 译外文题目 An Empirical Analysis of the Relation Between the Board of Director Composition and Financial Statement Fraud 外文出处 The Accounting Review 外文作者 Beasley, Mark S 原文：An Empirical Analysis of the Relation Between the Board of Director Composition and Financial Statement FraudIn these difficult financial times, property insurers have seen an influx of creative claims seeking to recoup funds lost to financial fraud schemes. Of course, everyone is familiar with the Bernard Madoff case, which is believed to be the largest financial fraud scheme in history. However, a number of other large scale financial fraud schemes stemming from the downturn in the stock and credit markets have also been exposed in the last few years. As these losses have come to light, claims seeking compensation for debts or bad business deals have also increased, with the losses being labeled as fraud or theft.10This Article will describe a variety of recent fraud cases that led to insurance claims, provide examples of the relevant policy language, and analyze the issues and case law applicable to such claims. It should be noted that there is very little case law addressing first-party property coverage for financial fraud claims under traditional homeowners and commercial first-party property policies (outside of the fidelity and surety world), so reference will instead be made to traditional property case law that may shed light on future court decisions. This Article does not endeavor to raise or address the numerous issues involved in a coverage analysis, but rather addresses some of the basic threshold coverage issues that have arisen to date.Several major investment fraud schemes have been uncovered in the past few years. While the manner of the deception has varied from Ponzi schemes of unprecedented scale to phony purchases, to real estate fraud, the victims are increasingly seeking reimbursement from their insurance companies when it is not available from the actual perpetrators of the fraud.In December 2008, the United States Securities and Exchange Commission (“SEC”) filed a complaint for financial fraud against Bernard Madoff and his company, Bernard L. Madoff Investment Securities, LLC. Reports estimate that Madoffs scheme defrauded his clients of $65 billion, making his crime the largest financial fraud case in Wall Street history.The type of scheme Madoff employed is often referred to as a “Ponzi scheme.” A Ponzi scheme is a fraudulent investment operation that pays returns to investors out of the money paid by subsequent investors rather than from legitimate profits. The Ponzi scheme usually offers abnormally high short-term returns in order to entice new investors. The perpetuation of the high returns that a Ponzi scheme advertises and pays requires an ever-increasing flow of money from investors. The system is destined to collapse because the cumulative earnings owed to existing investors will eventually be greater than the payments received from new investors. Usually, the scheme is interrupted by legal authorities before it collapses, either because a Ponzi scheme is suspected or because the promoter is selling unregistered securities. As more investors become involved, the likelihood of the scheme coming to the attention of authorities increases.In Madoffs case, however, the fraud was not discovered by the authorities. Despite having operated on a massive scale for many years, and despite repeated tips to the SEC as to the impossibility of the investment plans legitimacy, the authorities never uncovered Madoffs schemeor even seriously investigated it.3 The Madoff scheme came to a halt only because it had unraveled to the point that Madoff himself admitted to his sons that his investment fund “was a giant Ponzi scheme.”4 His sons contacted federal authorities and Madoff was arrested the next day.5The following are excerpts from Bernard L. Madoffs Plea locution:As I engaged in my fraud, I knew what I was doing was wrong, indeed criminal. The essence of my scheme was that I represented to clients and prospective clients who wished to open investment advisory and individual trading accounts with me that I would invest their money in shares of common stock, options and other securities of large well-known corporations, and upon request, would return to them their profits and principal. Those representations were false because for many years up and until I was arrested on December 11, 2008, I never invested those funds in the securities, as I had promised. Instead, those funds were deposited in a bank account at Chase Manhattan Bank. When clients wished to receive the profits they believed they had earned with me or to redeem their principal, I used the money in the Chase Manhattan bank account that belonged to them or other clients to pay the requested funds.To the best of my recollection, my fraud began in the early 1990s.To further cover-up the fact that I had not executed trades on behalf of my investment advisory clients, I knowingly caused false trading confirmations and client account statements that reflected the bogus transactions to be created.In more recent years, I used yet another method to conceal my fraud. I wired money between the United States and the United Kingdom to make it appear as though there were actual securities transactions executed on behalf of my investment advisory clients. Specifically, I had money transferred from the U.S. bank account of my investment advisory business to the London bank account of Madoff Securities International Ltd., a United Kingdom corporation that was an affiliate of my business in New York.6Madoff was not the only purveyor of Ponzi schemes to be exposed in recent years. A similar scheme operated by R. Allen Stanford and his company, Stanford Group Company, was also discovered recently. In February 2009, the SEC charged Stanford with operating a Ponzi scheme involving $8 billion in funds.7 Stanfords scheme also involved the promise of returns that were unrealistic and nearly impossible given real market conditions.The recent cases of large-scale fraud are not limited to investments on Wall Street. In December 2008, the United States government filed charges against Thomas Joseph Petters and his companies, Petters Company, Inc. and Petters Group Worldwide, Inc., for fraud related to a scheme involving the purchase and resale of merchandise to retailers. Petters and his companies took in billions of dollars from investors to purchase and resell merchandise, and allegedly prepared fake documentation including invoices, purchase orders, bills of sale, wire transfer confirmations, shipping documents, and financial statements to support their fraud. In fact, Petters was not engaging in any such merchandise business and was instead stealing the investments.9Commercial insurance carriers have also seen claims for financial fraud. Financial fraud claims against commercial insurers are rarer because most commercial policies contain clear exclusions for losses of securities and money.13 However, creative insureds are now alleging that funds lost to fraudulent investment schemes like Madoffs are not securities or money, but instead qualify as intangible property that is not excluded under commercial policies.14 While such claims appear to be without merit, insurers will nonetheless have to address and resolve these claims.15typical policy language:When a court must determine whether an insured has a claim after a loss due to financial fraud, the specific language used in insurance policies is important. A detailed examination of typical homeowners policy language is essential to analyzing these financial fraud claims. What follows are examples of the relevant language that is commonly used in insurance policies.A. ISO FormInsurance Services Office, Inc. (“ISO”) writes and publishes general forms for insurers to use in drafting their policies. Several sections of the ISO Homeowners form are relevant to financial fraud claims. First is the definitions section. The form defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in . . . bodily injury . . . or property damage.”16 Property damage, then, is “physical injury to, destruction of, or loss of use of tangible property.”17Language related to a policys limitations on liability is also important in this context. The ISO form limits coverage to “$200 on money, bank notes, . . . and coins” and “$1,500 on securities, accounts, deeds, evidences of debt, letters of credit, notes other than bank notes, manuscripts, personal records, passports, tickets and stamps. This dollar limit applies to these categories regardless of the medium (such as paper or computer software) on which the material exists.”18 These “special limits of liability” are certain to be raised by insurers in response to claims made for losses due to a financial fraud scheme assuming coverage otherwise exists.Next is language related to coverage or exclusions for particular causes of the loss in question. The ISO form, for example, covers losses due to theft, including “attempted theft and loss of property from a known place when it is likely that the property has been stolen.”19Because theft is covered under the ISO form, one threshold issue will be whether a financial fraud scheme qualifies as “theft” under the policy.Finally, the language related to conditions of coverage is important. For a loss to be covered, an insured must promptly notify the insurer of a loss and must notify the police if the loss was due to theft.20 Also (and perhaps obviously), the loss must occur during the policy period for coverage to apply.21B. Manuscript FormsManuscript forms are forms written by or for particular insurers. When written by the insurer, they are usually policies that are negotiated with or designed for individual insured. The language in these types of policies could vary significantly from one to another, and, as such, their applicability to financial fraud schemes could also vary.As will soon become clear, the language used by all policies is a major factor in deter- mining whether coverage applies to losses incurred as a result of financial fraud schemes.The downturn in the stock, credit, and housing markets has led to a number of high- profile financial fraud schemes in recent years, spurring investors to scramble for economic cover. Those who have lost money to swindlers or in bad business deals have increasingly turned to their insurance companies for reimbursement.Source: Beasley, Mark S. An Empirical Analysis of the Relation Between the Board of Director Composition and Financial Statement Fraud J. The Accounting Review, 1996,71(4).译文：董事会构成与财务报表舞弊之间关系的实证分析在受金融危机影响的日子里，财产保险公司已经看到了大量涌入的、具有创造性的索赔案例。在寻求赔偿基金的过程中却输给了精心策划的财务舞弊行为方案。当然，每个人都熟知Bernard Madoff的案例，它被认为是迄今为止最大的金融欺诈案例。然而，在过去的几年里，许多其他大型的财务舞弊行为的案例也随着股票和信贷市场的下滑被暴露出来。当这些舞弊案例被暴露出来时，也使当局更加认为这些赔偿债务和不良商业交易行为舞弊或金融偷窃的造成的损失。本文将描述一系列的最近的舞弊的案例，如那些导致保险索赔案例，为相关的政策性语言提供例子，并且运用判例法分析问题，以使他们适用于这样的主张。值得注意的是，只有很少的案例披露商业亲民党在传统的财产政策下如何解决亲民党的财务欺诈行为，那么，参考上述分析，而不是用传统的属性判例法，这是对未来法院判决的揭示。本文在涉及范围分析方面努力提高解决问题的水平，并且对以下相关信息中的地址日期等基本的阈值事件给予报导。在过去的几年，几个主要投资欺诈方案已被发现。而这些舞弊的方式则被称之为庞式计划。庞氏计划因地而异的、以前所未有的规模使我们的经济环境充斥着假的采购、房地产欺诈，受害者们是夜以继日的向他们的保险公司寻求还款，而他们的保险公司还要调查他们是不是实际的犯罪者，他们是不是有进行欺诈行为。在2008年12月，美国证券及交易委员会(证券交易委员会)起诉伯纳德的财务欺诈行为和他的公司，伯纳德L麦道夫投资证券公司。报告估计在麦道夫骗局中他从欺骗客户获得非法所得计650亿美元，这也使他称为华尔街历史上最大的骗子，此案例成为最大的金融诈骗案。麦道夫骗局的类型方案常被称为“庞兹方案”。庞兹方案的运作是以后加入的投资者的投资额来支付对先前投资者的回报，这不是投资者所获得的合法利润。这些骗人方案通常是提供异常高效益且回报周期短的股票来吸引新股民。为维持高收益的持久性，庞兹方案支付巨额的广告费用并且需要不断引进投资者才能加速资金的周转。该系统注定是要崩溃，因为它所欠现有的投资者的累计奖金收入，最终会比引进的新股民的付款多。由于庞兹方案开始便被怀疑或者因为启动销售了未注册的证券方案，通常其实施之前就会被法律当局打断并勒令停行。但随着越来越多的投资者参与，当局则慢慢从怀疑方案转变为更加关注方案的可行性了。尽管不想说，但事实的确如此，Bernard Madoff骗局一直未被当局发现。尽管这么大规模的诈骗行为运行多年，尽管证券交易委员会(SEC)一再建议，这个投资计划的非合法性，但是当局从来没有发现麦道夫骗局，甚至没有认真研究过它。 麦道夫骗局的中断只因为它已经发展到下述的地步，麦道夫对他四个儿子承认自己：“他的投资基金是一个巨大的庞兹方案。”他的儿子们才与联邦调查机构联系，麦道夫第二天被捕。以下是摘录自麦道夫伯纳德的辩诉：我知道我的欺诈行为时错误的，对我的惩罚也是应该的我的计划的本质是谁想开展投资咨询业务和开设个人交易账户时，我则代表客户和潜在客户把他们的钱投资于股票，普通股票期权及其他债券。那些大型知名公司，在提出要求时，我则会承诺他们的利润回报周期会较长。这些承诺都是虚假的，因为这多年来，直到2008年12月11日我被逮捕， 我所承诺的，我从来没有募集到这些投资证券基金来回报给他们。相反，那些资金以被称为曼哈顿银行账户在银行沉积了。当客户希望得到的利润，他们相信他们已经赢得了，而我或者叫做救赎主，我用的钱是曼哈顿银行账户的或其他客户支付的资金。根据我本人的回忆，我的欺诈行为开始于上个世纪90年代早期。我为了进一步掩盖的事实，没有遵行交易原则，以我的投资的观点回答咨询客户，我故意欺骗客户，操纵了虚假交易等自己想象吧。在最近的时候，我常常然而另一种方法来掩盖我的欺诈行为。我把钱汇在美国和英国，使其看上去似乎有实际证券事务所代表我向我的投资咨询的客户提供投资咨询意见。具体地说，我有钱支付给美国的银行账户，来维系我的投资咨询业务，而在伦敦也有这样一家国际有限公司的开立的银行账户，并且是一家英国公司，是一个存在隶属关系的公司，做着与之相同的事。Madoff并不是唯一在庞氏案例中被揭露出来，在近几年。一个类似的案例操作者艾伦斯坦福和他的公司，斯坦福集团公司也是近来被发现的。在2009年2月，美国证券交易委员会指控斯坦福通过操作庞兹计划欺诈涉及80亿美金的计划基金.而斯坦福所做出的回报的承诺，几乎是不可能兑现的，在真正的市场形势下他所承诺的回报是不切实际的。最近出现的大规模的舞弊案例不仅限于在华尔街股市。在2008年12月，美国政府立案起诉托马斯约瑟夫皮特和他的公司，皮特公司和皮特集团有限公司，在世界范围内，诈骗行为的基本形式是阴谋草拟涉及购买商品的销售给零售商再保险合同。皮特和他的公司将从投资者手中募集来的数十亿美