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
| Identifer | oai:union.ndltd.org:cuhk.edu.hk/oai:cuhk-dr:cuhk_328067 |
| Date | January 2013 |
| Contributors | Zhang, Yihong, Chinese University of Hong Kong Graduate School. Division of Law. |
| Source Sets | The Chinese University of Hong Kong |
| Language | English, Chinese |
| Detected Language | English |
| Type | Text, bibliography |
| Format | electronic resource, electronic resource, remote, 1 online resource (ix, 341 leaves) : ill. |
| Coverage | China, China |
| Rights | Use of this resource is governed by the terms and conditions of the Creative Commons “Attribution-NonCommercial-NoDerivatives 4.0 International” License (http://creativecommons.org/licenses/by-nc-nd/4.0/) |
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