This thesis deals with improving protection of minority shareholders in China. The minority shareholders are faced with the dual oppression from the managerial power and the majority rule, but they cannot get sufficient remedies through preventive mechanisms or remedial legal actions. / After introducing the main defects regarding minority protection in the Chinese Company Law, the Author examines the main mechanisms to check the management and majority shareholders, and the remedies available to shareholders under some major legal systems in the common law world. During or after the examination, the Author makes some comments on the mechanisms and remedies and offers his opinions on selectively adopting them in China.

Thesis (Ph. D.)--University of Washington. / Bibliography: l. [347]-357.

"The present volume is, in substance, my thesis approved for the degree of doctor of philosophy in the University of Edinburgh in the spring of 1922"--Pref.

This thesis seeks to contribute to our understanding of why creditors and debtors do not ordinarily use China's reformed Enterprise Bankruptcy Law ('EBL'), whether the low use of the EBL is problematic, and if so, what can be done to ensure a more efficient resolution of corporate insolvencies and corporate financial distress in China. The EBL has been lauded – domestically and internationally – as a major legislative success. However, despite the rapidly growing number of companies, level of corporate indebtedness and non-performing loans – which should, one might expect, lead to an increase in the use of the EBL – the number of court-run insolvency cases has in fact been decreasing since the law was implemented in 2007. The thesis draws on newly collected insights from a series of interviews in China - to supplement the scarce and often incoherent data that is available - to determine what motivates debtors and creditors not to use the EBL. The findings are presented as four complementary constraints on a more effective and efficient operation of the EBL. First two constraints relate to the low payoffs under the EBL that debtors and creditors expect to receive due to (i) flaws in the EBL itself and (ii) problems in surrounding non-bankruptcy rules and practices that reduce or prevent recoveries under the EBL. A third constraint affects those debtors and creditors who wish to use the EBL despite the low expected payoffs – for example to avoid directors' liability for corporate insolvency – but are prevented from doing so due to (iii) potential enforcers' limitations and biases. A fourth and final constraint on the use of the EBL that reinforces debtors' and creditors' unwillingness to use the EBL is (iv) the parties' (often inaccurate) perception that alternative debt enforcement mechanisms may offer comparatively higher payoffs (v. the EBL). Building on this discussion, the thesis then considers the desirability of, and options for, reform. It argues that reform and subsequent greater use of court-enforced insolvency law are desirable in China because the (reformed) EBL has the potential to contribute to economic development through more efficient resolution of complex financial distress; better control of bad debt; easier and cheaper corporate financing; more efficient allocation of resources; and more entrepreneurial activity. However, because the necessary changes to deliver this are likely to be slow in coming, it proposes a dual-track reform encompassing (i) substantive reform of the EBL and select non-bankruptcy laws and practices; accompanied by (ii) the introduction of a new speedy, independent and confidential mechanism for insolvency resolution, 'MedArb'.

This thesis focuses on the current court mediation institution in China against the worldwide movement of alternative dispute resolution in searching for more consensual and more efficient ways of resolving disputes. When the West is seeking more informality-oriented forms of dispute resolution, China, on the other side of the world, is making great efforts to improve its formal justice system rather than conventional means of dispute resolution like mediation. This thesis attempts to identify the role court mediation has played in Chinese legal history, to explore its current functions, to examine the rationale underlying the system, and to suggest its future reform. The economic analysis of law, particularly Posner's economic analysis of civil procedure and the Coase Theorem, and the ideas of Rawls' theory of justice provide theoretical underpinnings for this study. A review of these classical theories is conducted from the perspectives of efficiency and fairness. Although it is generally understood that both efficiency and fairness cannot be equally achieved by a legal policy, a good one should be concerned with both efficiency and fairness. The article concludes that the balance between efficiency and fairness should be presented in an optimal court mediation form. China's court mediation has remained an important means of dispute resolution, but left much to be improved. The author argues that the current court mediation is not as successful as it declares; it is, in fact, neither efficient nor just. The existing law governing court mediation does not provide a clear function and purpose for court mediation, nor does it consider the efficiency and fairness of court mediation. In practice, although it remains the dominant position in resolving disputes, it is merely a substitute for adjudication rather than a substantive alternative dispute resolution. By analyzing the current allocation of cases for different dispute resolutions, the author suggests that considering the overloaded court caseloads and the lack of a variety of alternative dispute resolutions in today's China, court mediation should be preserved, but thoroughly reformed, as a more acceptable and efficient means of resolving disputes. Upon its reform, this conventional means of dispute resolution with Chinese characteristics will play a positive role in the future. / Law, Peter A. Allard School of / Graduate

No description available.

published_or_final_version / Law / Doctoral / Doctor of Philosophy

published_or_final_version / Business Administration / Master / Master of Business Administration

蔡俊威. / "2013年9月". / "2013 nian 9 yue". / Thesis (M.Phil.)--Chinese University of Hong Kong, 2013. / Includes bibliographical references (leaves 131-148). / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract in Chinese and English. / Cai Junwei.

The thesis seeks to enhance understanding of the recent reform of capital punishment law, policies and institutions in China by studying its causes, significance, and limits. The research surveys the reform initiated by China’s top judiciary – the Supreme People’s Court - around 2006-2007. It demonstrates a changing domestic socio-political context, within which the external and internal impetus to reform is inevitable. Drawn from elite interview evidence with penal policy makers including judges, prosecutors, and legislators, the thesis concludes that Europe-inspired, cross-border abolitionist sentiments created motivation for change in China through soft mechanisms of shaming and persuasion, albeit to a limited degree. In the domestic realm, the research identified three pairs of interrelated tensions – the contradiction between elites and the public, the conflict between political intervention and judicial autonomy, and the divergent interests and priorities between top judicial organs and lower courts. These tensions are useful social, political and legal indicators to explain why and how China reformed its capital punishment machinery.