在过去十年间里，中国立法机关及政府机关已制定颁布了大量新的法律法规。这些法律从数量和质量上而言，和过去相比都有了很大飞跃，公司法和证券法领域尤为如此。 法律从业人员数量的增多满足了人们多元化的法律需求。财经媒体的迅速发展使得大众对商业和市场运行、以及相关法律法规产生了更加深刻的认识。 然而，这些方面的改善并不意味着中国上市公司小股东保护也得到了相应的加强。 / 本文主要围绕以下三部分内容进行了探讨：1.中国现行法律下规制小股东保护的法律原则及规则；2.从政治环境的角度分析政治对部分规则形成的影响以及一些规则在实践中未能达到其立法旨意的原因；及3.小股东积极通过诉讼保护自身权利的现状及困境。作者评估了法律在小股东保护方面的实际效果，并分析中国的当代政治对法律达到其原本立法旨意的影响。虽然保护小股东及上市公司治理的法律框架已越来越全面，但实践中，小股东通过诉讼途径来有效实现自身权利却仍困境重重。本文认为，法院拒绝受理针对政治背景深厚的公司提起的诉讼、小股东面临的举证困难、法院收取的高额诉讼费用等因素都是小股东在实践中所要克服的障碍。 / 本文认为，影响众多中国上市公司治理的最大问题以及小股东通过诉讼途径保护自身权益的最大障碍正是党国体制对经济活动的干预，尤其是对于部分上市公司和法律程序的干预。为论证该观点，文本首先分析了党国是如何参与并影响中国上市公司的治理。文章发现，党组织在那些由国家直接或间接控股的上市公司发挥了重要的决策及监督作用。此外，文章还分析了民营性质的上市公司是如何受到地方政府的干预。文章认为，针对上市公司的政治干预消弱了法律治理的作用，同时也损害了小股东的合法权益。为了实现对小股东的保护，法律不但要保护小股东不受私权的侵犯（比如私人或私人实体对小股东作出的欺诈或不当行为），更重要的是保护小股东权利不受到来自党国体制默许、支持、甚至实际参与的行为的侵犯。 / In the past decade, China has experienced an exponential increase in the quantity and quality of new laws and regulations promulgated by the state and its agencies, especially in the area of company law and securities regulation. The legal profession grows and provides ever more diversified services to a public, whose awareness of business and market practices, as well as to some extent the legal rules and principles governing these, are being strengthened by the burgeoning financial media. Yet, these improvements do not necessarily translate into better protection for minority shareholders of Chinese listed companies. / This thesis discusses the legal rules and principles governing minority shareholders’ protection, the political realities that have shaped some of the rules and, as argued here, threaten to undermine some of the principles, and minority shareholders’ activism to enforce their rights through litigation. The author has sought to test how law functions in the area of minority shareholder protection and how political practice affects the functioning of law in this area. While the legal framework for minority shareholders’ protection and for the corporate governance of Chinese listed companies is becoming increasingly coherent and comprehensive, it is still very difficult for the minority shareholders of listed companies to enforce their rights through litigation. Barriers faced by minority shareholders include, but not limited to, the court’s reluctance to try cases against listed companies that have strong political connections, difficulties for minority shareholders to meet the burden of proof, and the high litigation fees collected by the courts. / This thesis argues that the most severe problem affecting the corporate governance of many Chinese listed companies and the main obstacle of minority shareholders’ litigations against the listed companies lie in the intervention of the Party-State with economic activities occurring in what is formally speaking the private economy - in particular, activities on the part of publicly listed companies - and the legal process. To establish this argument, the thesis discusses, firstly, the participation and intervention of the Party-State in the corporate governance of Chinese listed companies. It finds that the Party committees play important decision-making and supervisory roles in listed companies controlled by the state and its agencies. Secondly, listed companies founded by private entrepreneurs are also under political influence from local governments. The political intervention of listed companies weakens the legal governance regime of Chinese listed companies and damages the interest of minority shareholders. The protection of minority shareholders requires a legal regime that could protect individual minority shareholders against not only private transgressions, such as fraud and misconduct on the part of private entities, but also, more importantly, the infringement of individual citizen’s rights committed with acquiescence, support or even participation from the Party-State and its agents. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Zhang, Yihong. / "November 2012." / Thesis (Ph.D.)--Chinese University of Hong Kong, 2013. / Includes bibliographical references. / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract also in Chinese. / Acknowledgments --- p.viii / Chapter Chapter 1 --- Introduction --- p.1 / The organization of the thesis --- p.2 / A survey of China’s securities market --- p.6 / Investors: who are investors in China’s stock market? --- p.6 / Policy-driven market --- p.31 / Chapter Conclusion --- p.39 / Chapter Chapter 2 --- Important Rights in Minority Shareholders Protection --- p.40 / Introduction --- p.40 / The conceptualization and typology of minority shareholders’ rights --- p.41 / The Principal shareholders’ rights in company law --- p.43 / Shareholders’ rights in relation to shareholders’ meetings --- p.44 / Shareholders’ rights in relation to inspection of company documents --- p.63 / Shareholders’ rights in relation to dividends --- p.71 / Chapter conclusion --- p.73 / Chapter Chapter 3 --- Fiduciary duties and minority shareholders protection --- p.76 / Introduction --- p.76 / Fiduciary duties of directors, supervisors and other senior officers --- p.79 / Background --- p.79 / Duties of directors and managers before the 2005 Company Law revision --- p.81 / The insertion of fiduciary duties by the 2005 Company Law amendment --- p.85 / The legislative framework of fiduciary duties in the 2005 Company Law --- p.87 / Legal remedies for minority shareholders when directors and other senior officers breach their fiduciary duties --- p.92 / The Duties of controlling shareholders --- p.103 / Related Party Transactions and fiduciary duties of the controlling shareholders --- p.106 / Derivative lawsuits against the controlling shareholders --- p.107 / Conclusion --- p.109 / Chapter Chapter 4 --- The Party’s influence and control over the listed company --- p.112 / Introduction --- p.112 / Statutory basis for the Party’s involvement in Chinese listed companies --- p.115 / The constitutional basis for the Party’s policy towards the listed companies --- p.115 / The Company Law’s basis for the Party’s involvement in the listed companies --- p.119 / The Party Law’s basis for the Party’s involvement in the listed companies --- p.121 / Summary --- p.123 / The role of the Party in Chinese listed companies --- p.124 / Decision-making mechanisms --- p.127 / Supervision mechanisms --- p.146 / The Relationship between local government and listed companies --- p.170 / Chapter Conclusion --- p.177 / Chapter Chapter 5 --- Analysis of minority shareholders protection cases --- p.179 / Introduction --- p.179 / The Representativeness of Northeastern Expressway --- p.181 / Materials and sources used for this case study --- p.183 / Structure of the case study --- p.185 / The financial packaging of the Northeastern Expressway --- p.187 / The corporate governance turmoil --- p.198 / Personnel appointment --- p.198 / Competition between local governments --- p.206 / Stage 1 The initial power struggle (1999-2001) --- p.208 / Stage 2 Zhang Xiaoguang’s reign (2001-2006) --- p.219 / Stage 3 Post Zhang Xiaoguang era (2006-2010) --- p.227 / The minority shareholders’ litigation --- p.233 / Chapter Conclusion --- p.239 / Chapter Chapter 6 --- State control of privately owned listed companies --- p.243 / Introduction --- p.243 / Historical review of privately owned listed companies --- p.250 / Pre-Republic: conditional recognition --- p.252 / Pre-reform: the road to illegitimacy --- p.253 / Post-reform: Private companies that were in the grey areas --- p.261 / The ‘red hat’ company --- p.271 / The Definition of the ‘red hat’ company --- p.272 / Vanke Co.: An exemplar of the ‘red hat’ companies --- p.274 / The predicaments of a ‘red hat’ company the case study of the Hubei Tianfa Group --- p.281 / The Kelong Case --- p.299 / Introduction --- p.300 / The issue of funding for minority shareholder’s litigation --- p.303 / Suspension of trial --- p.306 / Settlement --- p.309 / Ruling --- p.312 / Chapter Conclusion --- p.315 / Chapter Chapter 7 --- Conclusion --- p.318 / Reference --- p.328 / Abbreviations --- p.340

Text in Afrikaans / The Companies Act, 1973 ("the Act") contains no specific provision dealing with the relationship between a nominee shareholder and its principal, the beneficial shareholder. The Act merely contains a variety of references to this unique relationship without specifying the content thereof or elaborating on the rights of the beneficial shareholder. It is clear from the Act that no legal connection exists between the company and the beneficial shareholder and a company is only obliged to recognise its registered members. It has become apparent that beneficial shareholders need more protection than is currently afforded to them in terms of our common law. Currently beneficial shareholders have a common law right to claim return of their shares from any person (even bona fide third parties) in the event of the misappropriation of such shares by their nominee shareholders. Beneficial shareholders are unprotected if their nominee shareholders were to act contrary to their instructions, for example by not voting at the general meeting in accordance with the instructions of the beneficial shareholders. Having regard to the fact that the relationship between the beneficial shareholder and the nominee shareholder is based on agency or trusteeship, the beneficial shareholder will be entitle to compel its nominee to transfer the shares to another person. This may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the only solution for the beneficial shareholder. In deciding which section of the Act should be adapted to include the rights of beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of prejudice), section 440K (compulsory acquisition of securities of minorities) and section 344(h) (liquidation on grounds of equity). The only one of these sections which provides the court with a wide enough discretion to afford the required protection is section 252. An important point in this regard is that section 252 cannot effectively be extended to beneficial shareholders unless they also acquire the right to have access to the same company information as the members of the company would receive. In an attempt to create a balance between the needs to greater protection of beneficial shareholders and the avoidance of unnecessary cumbersome administrative obligations on companies, it is suggested that a register of beneficial shareholders be created and that companies be obliged to inform all beneficial shareholders appearing on such register of the same company information as is provided to registered members. The Act must make it clear that : • a beneficial shareholder can only be recorded in the register with the assistance of its nominee shareholder; • the relevant nominee shareholder must satisfy the company secretary that the person which is recorded in the register is in fact its principal; • the only two instances where the company secretary will be entitled to remove the beneficial shareholder is in the first instance where the beneficia] shareholder consents to such removal and secondly where the shares held by the registered member is transferred. The latter ground will avoid continued provision of company information to persons not involved with the company. No duty will be placed on companies to ensure that the names and addresses of beneficial shareholders are correct. This will be the responsibility of beneficial shareholders. The improved flow of company information will facilitate the improved awareness by beneficial shareholders of relevant events and together with the appropriate extension of section 252, will go a long way in improving the much needed protection of beneficial shareholders. / Mercantile Law / LL.M. (Handelsreg)

published_or_final_version / Business Administration / Master / Master of Business Administration

In 1989, Jordan chose to follow the track of democracy and open economy. From that time on, Jordan has embarked upon plans to reform its legal as well as economic and social structures. Continuous and serious efforts have been underway to enable Jordan to join the WTO (World Trade Organization) and become part of the new "economic global village". Many observers see this as a step to help Jordan materialize these plans and to help put it on a road that will inevitably lead to more freedom of choice and more competitiveness. / Opening the national markets means exposing the domestic industry and market to foreign competitors. In order to preserve the domestic economic and social fabrics, local industries have to gain the maximum efficiency and market width possible or they will go under. Such efficiency and investors' inducement can and should be encouraged through providing a "liberal" legal framework. Such a framework, applied to the field of corporate law, can impose market control over management's inefficiency, and give businesses the diversity they need to attract investors.

This thesis examines creditors' use of the oppression remedy under the Canada Business Corporations Act and its provincial equivalents from historical and critical perspectives, assesses the consequences of the increasing willingness of Canadian courts to make the remedy available to creditors and concludes by offering some solutions to the problems that are identified. Part I traces the historical development of the oppression remedy, first in the United Kingdom and then in common law Canada. Next, the current state of the law relating to the oppression remedy is briefly examined, followed by a review of recent developments with respect to the use of the oppression remedy by creditors. Part II is a critical review of the evolving law with respect to creditors' use of the oppression remedy. This part of the thesis focuses on: (i) the relationship and potential conflict between the oppression remedy and other available remedies; and (ii) the impact of creditors' uses of the oppression remedy on the relationship between the corporation and its other stakeholders, including issues of shareholders' and directors' liability. In Part III, it is argued that the present use of the oppression remedy by creditors is not being developed in a coherent and principled manner. Certain guidelines are offered to provide the courts with reasonable controls on and principles to guide the use of the oppression remedy by creditors. In particular, it is argued that the oppression remedy should not be available to creditors when there are, either under corporate legislation or other, general legislation, appropriate remedies already available. The result would be that the oppression remedy should be available to creditors only in the limited category of cases where the creditor has no other effective remedy and the conditions for the use of the oppression remedy are met.

Text in Afrikaans / The Companies Act, 1973 ("the Act") contains no specific provision dealing with the relationship between a nominee shareholder and its principal, the beneficial shareholder. The Act merely contains a variety of references to this unique relationship without specifying the content thereof or elaborating on the rights of the beneficial shareholder. It is clear from the Act that no legal connection exists between the company and the beneficial shareholder and a company is only obliged to recognise its registered members. It has become apparent that beneficial shareholders need more protection than is currently afforded to them in terms of our common law. Currently beneficial shareholders have a common law right to claim return of their shares from any person (even bona fide third parties) in the event of the misappropriation of such shares by their nominee shareholders. Beneficial shareholders are unprotected if their nominee shareholders were to act contrary to their instructions, for example by not voting at the general meeting in accordance with the instructions of the beneficial shareholders. Having regard to the fact that the relationship between the beneficial shareholder and the nominee shareholder is based on agency or trusteeship, the beneficial shareholder will be entitle to compel its nominee to transfer the shares to another person. This may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the only solution for the beneficial shareholder. In deciding which section of the Act should be adapted to include the rights of beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of prejudice), section 440K (compulsory acquisition of securities of minorities) and section 344(h) (liquidation on grounds of equity). The only one of these sections which provides the court with a wide enough discretion to afford the required protection is section 252. An important point in this regard is that section 252 cannot effectively be extended to beneficial shareholders unless they also acquire the right to have access to the same company information as the members of the company would receive. In an attempt to create a balance between the needs to greater protection of beneficial shareholders and the avoidance of unnecessary cumbersome administrative obligations on companies, it is suggested that a register of beneficial shareholders be created and that companies be obliged to inform all beneficial shareholders appearing on such register of the same company information as is provided to registered members. The Act must make it clear that : • a beneficial shareholder can only be recorded in the register with the assistance of its nominee shareholder; • the relevant nominee shareholder must satisfy the company secretary that the person which is recorded in the register is in fact its principal; • the only two instances where the company secretary will be entitled to remove the beneficial shareholder is in the first instance where the beneficia] shareholder consents to such removal and secondly where the shares held by the registered member is transferred. The latter ground will avoid continued provision of company information to persons not involved with the company. No duty will be placed on companies to ensure that the names and addresses of beneficial shareholders are correct. This will be the responsibility of beneficial shareholders. The improved flow of company information will facilitate the improved awareness by beneficial shareholders of relevant events and together with the appropriate extension of section 252, will go a long way in improving the much needed protection of beneficial shareholders. / Mercantile Law / LL.M. (Handelsreg)

No description available.

No description available.

University of Macau / Faculty of Law

The capital maintenance doctrine presupposes that a company’s capital must not be returned to its shareholders. The doctrine was anchored on three rules, one of which was that a company cannot acquire its own shares as this amounted to a diversion of capital to the shareholders whose shares were acquired. This rule was partly rationalized as protecting the interests of shareholders. In South Africa the rule was embodied in s 85 of the Companies Act 61 of 1973. However, it was amended by s 9 of the subsequent Companies Amendment Act 37 of 1999 to provide that a company can acquire its own shares if certain substantive and procedural requirements were satisfied. Upon the enactment of Companies Act 71 of 2008, the requirements have not been substantially altered. They are partly geared towards protecting shareholders by ensuring that shareholders are treated equally and fairly. Moreover, the Johannesburg Securities Exchange Limited (hence the JSE Limited) was empowered by the Companies Act 61 of 1973 to promulgate requirements to be met when a company wishes to acquire its own shares. The Companies Act 71 of 2008 does not in express terms empower the JSE Limited to develop requirements to be met when a company wishes to acquire its own shares. However, the Act expressly requires that a listed company wishing to acquire its own shares must also comply with the requirements of the relevant exchange. Such requirements can therefore be deemed to subsist even amidst the new Act as an internal regulation of the JSE Limited. The said requirements are also partly aimed at protecting shareholders, largely by ensuring that adequate information is availed to shareholders to empower them to make informed decisions. / Private Law / LL. M. (Company Law)