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

The erotic triangle, in which two men compete for a desired woman, is a foundational archetype of Western culture. This dissertation, through its three separately-published articles, examines how this cultural archetype is manifested in law and legal structures, and the relationship between law’s erotic triangulations, gender inequality, and third-party responsibility. Each of the three articles of this dissertation focuses on a different manifestation of third-party responsibility, and each offers its own self-contained argument. At the same time, the “graphic schema” of the erotic triangle analytically enriches each of them. The erotic triangle is a “sensitive register […] for delineating relationships of power and meaning,” and using it in this context illuminates the shifting ways gender, power, and legal responsibility circulate in these male-female-male legal structures. Together, the articles suggest that law both replicates and reproduces erotic triangulations in ways that contribute to gender inequality, but also that it may be an important site for their renegotiation. The first article, A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye, explores how the tort of interference with contractual relations was created out of a factual scenario involving an erotic triangle (two rival opera-house managers competing for the services of a renowned chanteuse). The court converted past regulations of erotic triangles (in particular, criminal conversation, which allowed a husband to bring an action against a man for sexual interference with his wife) into a new cause of action, one which removed a triangulated woman’s responsibility for breaching a contract, and instead assigned responsibility to the man who induced her to breach. While this first iteration involves the removal of responsibility from a triangulated woman, the second article, Home Rules, involves an inversion of this responsibility allocation: here responsibility is removed from a usually male wrongdoer and instead imposed upon a triangulated woman. Home Rules examines how, through a series of ordinances, local governments are imposing responsibility on female heads of household for the wrongful actions of their typically male household members. In so doing, local governments disrupt kinship structures and assert the state’s dominance over the family and intimate life. The third article, Triangulating Rape, evidences a more positive shift in responsibility. It traces the transformation of rape law as a progression from a tradition of erotic triangulation to a subversion thereof. Unlike the historical rape law triangle, in which rape is legally constructed as a wrong that one male does to another through the body of a woman; and unlike the criminal rape law triangle, in which rape is legally constructed as a wrong that one man does to the state through the body of a woman; civil actions in which women bring claims against both perpetrators of sexual assault and the third-party entities that facilitate or fail to prevent those assaults allow harmed women to assert their own subjectivity and climb out of their traditionally passive role in the erotic triangle. In so doing, this reconfigured triangulation ultimately challenges the gender status quo that produces sexual harms, and suggests that subverting the usual functioning of triangulated patterns may hold promise as a tool of social change.

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In this thesis I explore the implications of the extension of 'spousal' status to samesex couples from the perspective of queer people who experience intersectional or complex oppression. This study is grounded in a rejection of the necessity or efficacy of attempting to understanding the oppressions facing queer people from only one perspective. I reject the notion that such a simplistic approach to understanding oppression is conceptually honest. Put simply, I argue that what is often characterised as a purely 'gay and lesbian' approach to reform—namely, the consideration of only oppression related to 'sexual orientation' or 'heterosexism'—is in reality the prioritisation of the limited perspective of those who only experience systemic disadvantage related to their race. These people are a small minority of queer people. Unlike many other academics and activists, I do not conclude with a 'yes' or 'no' response to the question of whether same-sex spousal status should be sought. The analysis presented in this thesis does not permit such a final conclusion for three reasons. First, I argue that the implications of the extension of spousal status vary depending on the institutional context; in other words, the extension of spousal status is very different in the context of social assistance law as compared to the provision of employment-related benefits. Secondly, I argue that the extension of spousal status also varies among queer people; for example, the implications of the extension of spousal status to poor queers are vastly different from those who are wealthy. Thirdly, I argue that the decision to support the extension of spousal status to same-sex couples is inherently political; this decision cannot be immunised from political challenge on the basis that it is derived from some allegedly objective legal or socio-scientific calculus. Although I have endeavoured adopt a inter-disciplinary approach, this thesis does focus on legal rights discourse. To my mind, this focus is appropriate given the emphasis on 'rights talk' and the assumed benefits of formal equality within the community of academics and activists working on queer issues. In various parts of this thesis, I focus on the approaches of activists, academics, judges and legislators to the issue of the rights of queer people and the nature of equality. Ultimately, I conclude that until we begin to appreciate the complexity of the oppressions facing queer people, and avoid the false prioritisation of a 'purely gay and lesbian oppression' perspective, we will be unable to work in coalition or to effect progressive social change.

Prisoners rights has become an issue of ever increasing visibility since the middle of the last century. Concern for the rights of those incarcerated within our prisons has intensified with the rise of civil liberties in both Canada and England. Both countries have introduced measures which purport to guarantee fundamental rights and freedoms to their citizens, measures which it would be reasonable to assume, would further the advance of prisoners rights. And yet, progress remains decidedly sluggish. This thesis traces the evolution of rights philosophy, then considers the parallel developments of prisoners rights, penal philosophy and civil liberties and seeks to explain why the potential for advancement has not been fully realized. Prisoners are incarcerated having been found guilty of the most grave of criminal offences and as a consequence, it is perhaps a basic instinct which determines that retribution, and only retribution is warranted in such circumstances. In the age of human rights however, there is the wider picture to consider. This is an age where compassion, mercy and benevolence are to triumph over barbarism, destruction and senseless harm. The conflict between these competing perspectives cannot be dealt with merely by enacting legislation which compels the judiciary to consider claims in a different light, and can only be resolved through a revolution beginning with definitive stance in judicial treatment of prisoner right claims which embraces the philosophy of international human rights provisions. In order to be effective, this must be assisted by bringing about changes within the prison system itself which empower the prisoner and seek to eliminate the feelings of embitterment and resentment which commonly prevail amongst prisoners. The introduction of such measures will only be acceptable if society itself recognizes that imprisonment is transitory and that those who we incarcerate within the walls of our prison, will soon be among us.

My thesis is that Indigenous peoples, as distinct people, are entitled to the full affirmation and explicit recognition of the right to self-determination in the context of the draft U N Declaration on the Rights of Indigenous Peoples and in international law generally. The international community, and in particular, the nation-state members of the United Nations must uphold their legally binding international obligations in this regard. My methodology has been to utilize the human rights framework and approach, as well as rights discourse to advance this thesis. In addition, I am relying upon my direct participation in this important standard setting process, as well as the writings of various publicists. The right of peoples to self-determination is considered by numerous international authorities to be jus cogens or a peremptory norm. Similarly, the prohibition of racial discrimination is considered by numerous authorities to be a peremptory norm. Throughout the draft Declaration debate, a number of states have proposed wording that would dramatically alter the scope and content of the right to selfdetermination, thereby limiting, qualifying or modifying this right in the context of indigenous peoples. Any state proposals to qualify, limit or modify the right of indigenous peoples to self-determination would be racially discriminatory. If Article 3 of the draft Declaration were to be altered - even to include the same or similar notions as might currently exist under international law - it would invite interpretations to be applied to indigenous peoples' right to self-determination that are different from those of other peoples. It might also have the effect of wrongfully freezing the interpretation of this indigenous human right, in such a manner as to prevent or otherwise stifle its natural evolution under international law. If there is no equality of application of the rule of law in the context of international law and states succeed in introducing discriminatory double standards in connection to indigenous peoples and their fundamental right to self-determination, then the failure of the human rights framework, the United Nations system and nation-states themselves will seriously erode the very concepts of democracy, human rights and the rule of law.

In an era of globalisation, often described as the era of mobility and of the decline of the relevance of territory, the Roma and the Travellers embody a transnational and non-territorial society. Yet this minority group experiences deplorable living conditions and the survival of its culture is endangered. A study of minority protection mechanisms in international law reveals that the grasp of territory and "sedentarism" has far from disappeared from this branch of law. Territory (or the absence thereof) and movement are the main challenges faced by international law in the development of solutions to the situation of the Roma and the Travellers. In light of the failure of current minority protection regimes, the quest for recognition of a "Roma nation" appears to be an avenue worth exploring. However, while the Roma may not fall clearly within the parameters of minority protection, they do not fall clearly within the concept of nation either. When examining the potential of such recognition, one realizes that it is necessary to redefine the right of self-determination in the context of minority protection and in a transnational and non-territorial perspective.

The business judgment rule is used by American courts to establish whether a director has fulfilled his duty of care. It is based on the concept that the directors are legally empowered to manage a corporation's affairs, and the courts accordingly do not interfere with the exercise of those powers unless a board's action is tainted by fraud or self-interest. The courts will not review a business decision where, acting in good faith, the board has truly applied itself to making an informed decision. In certain circumstances, where self-interest on the part of directors is more likely to be a factor, a stricter test is applied. The business judgment rule is implicit in the judgments of English and South African courts and the King Committee has recommended its formal recognition in South Africa. The need for such formal recognition and stricter interpretation of the duty of care and skill discussed. / Private Law / LL.M.

Zimbabwean widows need to inherit property when their husbands die. Property, be it material or financial in nature, is a source of sustenance and wealth. Depriving women of property inheritance rights has untold consequences. This study focuses on the property inheritance rights of widows in Zimbabwe in the Sikalenge Ward of Binga District. The aim of the study is to understand how property grabbing affects widows and to find possible solutions and intervention strategies social workers may use. The literature reviewed in the study was drawn from both the legal field and social work to create a link between the fields. The study was shaped by radical feminism for conceptualising property grabbing while the formulated intervention strategies utilised the empowerment model. The study is qualitative in nature using interviews to collect data from ten widows and five social service providers who constitute the total of fifteen participants in the study. Data was analysed qualitatively using interpretive approaches and presentation is textual rather than statistical. The main finding of the study is that widows are still being denied their inheritance rights despite the provision of such rights by the Intestate Succession Laws promulgated in November 1997 by the government of Zimbabwe. Moreover, the widows are not aware of the inheritance laws of Zimbabwe and hence did not seek any professional intervention. The few who attempted the legal process for recourse were not successful. Even though it was minimally attempted, the study established that the main form of failed intervention tried by the women was legal in nature and suggests and emphasises an eminent need for Social Work intervention to supplement legal intervention.