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China’s rule of law in the globalization era
ZHANG Wenxian
Front. Law China. 2006, 1 (4): 471-485.
https://doi.org/10.1007/s11463-006-0022-5
Globalization of the economy, public affairs, human rights, environmental issues and laws indicate the developing tendency of human beings and society, and this has a great influence on the third reform of Chinese law in many aspects. Upon its entrance into the WTO, China carried out a large-scale clarification and amendment of its laws and regulations, and incorporated itself into the global governance structure. This marks the beginning of the third legal reform in the country. This reform includes the reform of the political and legal system, restructuring of the legal system, and evolution of the real meaning of law. In the future development of Chinese law, the fundamental nature of modern, global and human civilization, and the legal profession will penetrate much more into the whole Chinese law and its operation.
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Reform of lawsuit system and revision of filing conditions
ZHANG Weiping
Front. Law China. 2006, 1 (4): 550-565.
https://doi.org/10.1007/s11463-006-0026-1
Currently the Civil Procedure Law stipulates rather high conditions for lawsuits and the reason is that in the institutional design, we have equated the conditions of adjudicating the merits with those of lawsuits and the initiation of lawsuits. The trial of conditions of adjudicating the merits are usually conducted after the beginning of lawsuits, while in China it is carried out before the beginning of lawsuits, and thus the related procedures have become a kind of pre-lawsuit procedures , and theoretical and institutional confusions and contradictions arise. This article is of the opinion that filing conditions should be separated from those of adjudicating the merits, and the trial of the latter should be incorporated into the proceedings. A dual trial structure should be constructed, that is, the trial of conditions for adjudicating the merits goes parallel with that of merit disputes. In the attempt to improve civil procedures, attention should be given to the institutionalization of conditions of adjudicating the merits, which should be reasonably designed and integrated into relevant systems. When reforming the lawsuit system, we should also adjust the courts trial organs. We recommend not setting up any case-filing or appeal divisions and removing the existing separation of case-filing and trial .
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Disputes about corporate expression absorption and their legal remedies
GUAN Xiaofeng
Front. Law China. 2006, 1 (4): 566-594.
https://doi.org/10.1007/s11463-006-0027-0
Corporate expression is the expression that a company gives to the outside in its capacity as a legal entity. Often referring to resolutions made by shareholder meetings and the board of directors, based on good faith and bound by contractual spirit, a company must be held liable for its expression. Corporate expression absorption refers to the corporate behaviors and situations wherein the majority voting shareholders and directors replace the will of the minority voting shareholders and directors within their own will. Among them, the majority voting shareholders at a shareholders meeting (shareholders general meeting) are decision-making shareholders, and directors, managers and other senior management staff that decide corporate affairs are called decision-making members. Corporate expression absorption consists of two sorts: absorption by shareholders meeting and absorption by the board of directors. Shareholders meeting is a company s authoritative organization; when the voting rights of some shareholders exceed the statutory limit, they will be able to manipulate the expression of shareholders meetings and replace the will of other shareholders with that of their own. The expression absorption by the board of directors refers to the practice wherein the majority directors decide on important corporate matters in accordance with the majority rule. Thus, it can be seen that the corporate expression absorption is a double-edged sword, not only capable of uplifting operational efficiency but also likely to help decision-making shareholders achieve personal gains and transfer corporate interests. As for the disputes of corporate expression absorption, the following legal remedies might be adopted: (1) Limit the voting rights of decision-making shareholders. (2) Provide shareholders with veto power over specific events. (3) Ask the chambers of commerce (industry associations) to arbitrate specific events. (4) Preserve the market value of shares held by dissenting directors. (5) Expand cumulative voting; (6) Provide shareholders the right to exit. (7) Legal remedies for corporate deadlock. (8) Shareholders derivative lawsuits.
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