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Chapter 1 Corporate Disclosure, Corporate Governance, and Law Reform in the People's Republic of China1

1.1. Why Has the Study of Corporate Governance in the People's Republic of China Become Important?1

1.2. An Overview of Corporate Disclosure and Corporate Governance in China3

1.2.1. The Concept of Corporate Governance Used in China3

1.2.2. Is Corporate Governance in China Improved by the Adoption of a Top-Down or Bottom-Up Approach?6

1.2.3. Stages of Corporate Governance Development in the PRC12

1.2.4. Major Corporate Governance Issues in China13

1.3. Establishing the Corporate Disclosure Regime as a Tool for Improving Corporate Governance in China15

1.4. Transplanting Foreign Corporate Disclosure Laws into China16

1.5. Improving the Approach of Transplanting Foreign Laws Using the Australian Transplantation Experience16

Chapter 2 Introduction17

2.1. Background of the Formation of the Corporate Disclosure Regime in the PRC17

2.2. The Significance of This Book23

2.3. Three Hypotheses Explored in This Book27

2.4. The Outline of This Book29

2.5. Methodology31

2.6. The Cut-Off Date32

Chapter 3 An Introduction to the Chinese Legal System:Setting the Context for Securities Law Reform33

3.1. Introduction33

3.2. Legal History of the PRC34

3.2.1. The Importance of Reviewing Chinese Legal History34

3.2.2. A Brief Review of Chinese Legal History35

3.3. Sources of Law in the PRC and Their Importance44

3.3.1. Introduction44

3.3.2. Forms of Legal Sources in the PRC50

3.4. Lawmaking Bodies in the PRC56

3.5. Lawmaking Processes in the PRC58

3.5.1. Lawmaking Process of the NPC58

3.5.2. Lawmaking Process of the Standing Committee of the NPC60

3.5.3. Process for Making Administrative Regulations by the State Council63

3.5.4. The Making of Local Regulations by Local People's Congresses65

3.5.5. The Making of Departmental Administrative Rules by the Ministries and Commissions of the StateCouncil and the Making of Local Administrative Rules by the Provincial Governments65

3.6. Enforcement of Law in the PRC66

3.6.1. The Enactment of the Company Law of 1993and the Securities Law of 1998 and Their Amendments in 2005, as Well as Relevant Administrative Regulations and Administrative Rules70

3.6.2. How Did the PRC Start Regulating the Securities Market?71

3.6.3. How Were the First Company Law and Securities Law Enacted?72

3.7. Conclusion76

Chapter 4 Gatekeepers in the Chinese Securities Market79

4.1. Introduction79

4.1.1. Re-emergence of Securities Issue and Regulation80

4.1.2. Corporate Disclosure Rules93

4.2. The Regulator of the Chinese Securities Market: The CSRC93

4.2.1. Regulation by Other Bodies of the Central Government before 199893

4.2.2. Trying to Centralize Securities Regulation94

4.2.3. The Functions of the SCSC and the CSRC95

4.2.4. The CSRC's Rules on Disclosure102

4.2.5. Overview of the Functions of the CSRC103

4.3. The Regulators of the Chinese Securities Market:Other Departments under the State Council106

4.3.1. Regulation by the PBOC106

4.3.2. Other Departments of the State Council110

4.4. The Regulators: Local Governments114

4.4.1. Regulation by Local Governments before the CSRC was Established114

4.4.2. The Role of Local Governments after 1998116

4.5. Other Regulatory Bodies: The Stock Exchanges116

4.5.1. Why the Shanghai and Shenzhen Stock Exchanges Were Established116

4.5.2. The Shanghai Stock Exchange (SSE)117

4.5.3. The Shenzhen Stock Exchange (SZSE)121

4.5.4. Overview of the Role of Stock Exchanges in the PRC122

4.6. Self-Regulatory Organizations123

4.6.1. Securities Industry Association123

4.6.2. Other SROs125

4.7. Conclusion125

Chapter 5 Regulatory Rules Dealing with Disclosure in the PRC's Securities Market127

5.1. Introduction127

5.1.1. What Is the Concept of Securities Used in This Book?131

5.1.2. Companies' Duty of Disclosure versus Directors'Duty of Disclosure132

5.1.3. Where Are the Disclosure Rules?134

5.1.3.1. The Structure of Disclosure Rules134

5.1.3.2. The Disclosure Rules under the National Laws135

5.1.3.2.1. The Company Law of 2005135

5.1.3.2.2. The Securities Law of 2005136

5.1.3.2.3. The Criminal Law of 1979137

5.1.3.3. Disclosure Provisions under Administrative Regulations138

5.1.3.3.1. The State Council's Interim Regulations on Administration of Share Issuing and Trading of 1993 (The 1993 Interim Regulations)138

5.1.3.3.2. The Regulations on the Issue of Foreign Shares by Listed Companies inside China of 1995139

5.1.3.3.3. The Special Provisions on Share Issuing and Listing outside China by Listed Companies of 1994140

5.1.3.4. Disclosure Rules under Departmental Administrative Rules140

5.1.3.4.1. Disclosure Rules in the Accounting Standards Set by the Ministry of Finance140

5.1.3.4.2. Disclosure under the Administrative Rules and Other Regulatory Rules of the CSRC140

5.1.3.5. Disclosure Provisions Concerning Disclosure in the Listing Rules and Business Rules of the Stock Exchanges142

5.1.4. Brief Comments on the Disclosure Regime143

5.2. Major Rules Dealing with Disclosure in Fundraising144

5.2.1. Disclosure in Initial Public Offerings (IPOs)144

5.2.1.1. Sources of Rules on IPOs144

5.2.1.2. IPOs and Offerings of Other Shares145

5.2.1.3. The Verification System Versus the Examination and Approval System in Public Offers of Company Shares146

5.2.1.4. Procedures for IPOs150

5.2.1.5. Application Documents for IPOs152

5.2.1.6. Prospectus153

5.2.1.7. Procedures for B-Share Issuing154

5.2.1.8. Overview of Disclosure Rules Regarding IPOs157

5.3. Continuous Disclosure157

5.4. Special Disclosure Rules of the CSRC158

5.5. Major Issues on Disclosure159

5.5.1. The Theories of Government Regulation of the Securities Market159

5.5.2. Why Should the PRC Adopt Compulsory Disclosure?160

5.5.3. Criteria for Disclosure161

5.5.4. What Should Be Disclosed?162

5.5.4.1. The Annual Report165

5.5.4.2. The Half-Yearly Report166

5.5.4.3. The Quarterly Report166

5.5.4.4. The Interim Report166

5.5.4.5. Related Party Transactions167

5.6. The Formation of Disclosure Rules and Their Functions168

5.7. Overview of the Corporate Disclosure Regime in the PRC170

5.7.1. The Enforcement of Laws and Regulations170

5.7.2. The Defects in the National Laws170

5.7.3. How Should Foreign Experiences Be Adopted?171

5.8. Conclusion: What Can the PRC Learn from the US Model in Terms of Disclosure?171

Chapter 6 The State of the Securities Market and Disclosure in the PRC175

6.1. The Development of the Securities Market175

6.1.1. Re-emergence of the Securities Market in the PRC175

6.1.2. The History of Securities Markets in China before 1949177

6.1.3. The Securities Market after the Founding of the PRC179

6.1.4. The Securities Market Since the 1980s179

6.2. Listed Securities184

6.2.1. A-Shares and B-Shares in the Domestic Markets184

6.2.2. Four Types of Shares in Shareholding Companies Converted from SOEs186

6.2.3. Bonds193

6.2.4. Funds195

6.3. Opening of the PRC Securities Market after Its WTO Accession196

6.3.1. Means for Share Issuing196

6.3.2. Formation and Abolition of the Quota System for Share Issuing197

6.3.3. From an Examination and Approval System to a Verification System199

6.3.4. The Main Board and the High-Tech Board200

6.4. Investors in the Securities Market201

6.5. Securities Companies201

6.6. Classic Cases Involving Disclosure on the PRC Securities Market202

6.6.1. The Baoyan Incident202

6.6.2. The Case of Beihai Zhengda Company's Takeover of the Shares of Susanshan Company203

6.6.3. The Qiongminyuan Case of a False Financial Report203

6.6.4. The Chengdu Hongguang Case of Profits Forgery and Fraudulent Listing204

6.6.5. The Yinguangxia Fraud Case204

6.6.6. Hainan Kaili Company v. the CSRC205

6.6.7. Reasons for the Frequent Occurring of False Disclosure Cases205

6.7. Exchange and Cooperation with Securities Regulatory Bodies in Other Countries206

6.7.1. The International Organization of Securities Commissions206

6.7.2. The International Accounting Standards Committee207

6.7.3. Raising Capital from Abroad207

6.8. Conclusion208

6.9. Information Availability, Mechanism for Enforcing Securities Regulations, and Remedies for Investors Who Have Suffered Losses210

6.9.1. Information Availability210

6.9.2. Information Availability under the Law and in Practice212

6.9.3. Bodies Involving Enforcement of Securities Regulations213

6.9.4. The Powers of the CSRC Dealing with Cases Involving Contravention of Disclosure Provisions214

6.9.5. The Remedies Available to Investors Who Have Suffered Losses219

6.9.5.1. Administrative Remedies219

6.9.5.2. Criminal Remedies219

6.9.5.3. Civil Remedies220

6.9.6. Conclusion221

Chapter 7 Key Elements of the Australian Corporate Disclosure Regulatory Regime223

7.1. Introduction223

7.2. The Brief History of Australian Securities Markets226

7.2.1. The Emergence and Development of Securities Markets in Australian Colonies before 1900226

7.2.2. The Movement towards a Uniform Companies Act and a Uniform Securities Market since the 1930s230

7.2.3. Current Development of the Securities Markets in Australia237

7.2.3.1. Stock Exchange Automated Trading System(SEATS)238

7.2.3.2. Clearing House Electronic Sub-register System(CHESS)239

7.2.3.3. Influence of Foreign Markets239

7.2.4. Financial Disclosure and Committees of Enquiry in the Process of Corporate Law Reform240

7.2.4.1. The Select Committee on Joint Stock Companies and the Joint Stock Companies Acts of 1844 and 1856240

7.2.4.2. The 1895 Davey Report of the UK,the Companies Act of 1896 (Victoria),and the 1906 Loreburn Report of the UK241

7.2.4.3. The Greene Report of 1925-1926 and the Companies Act of 1929 of the UK242

7.2.4.4. The Cohen Report of 1945 of the UK242

7.2.4.5. The Jenkins Committee Report of 1962 of the UK243

7.2.4.6. The Eggleston Committee Report of 1970243

7.2.4.7. The Rae Report of 1974243

7.2.4.8. The 1975 Corporations and Securities Industry Bill245

7.2.4.9. The 1983 Green Paper245

7.2.4.10. The Griffiths Report of 1989246

7.2.4.11. The CASAC Report of 1991 and the Lavarch Committee Report of 1991247

7.2.4.12. The 1992 Cadbury Report of the UK254

7.2.4.13. The Ramsay Report of 2001255

7.2.4.14. Principles of Good Corporate Governance and Best Practice Recommendations of the ASX Corporate Governance Council of 2003 and Its Amendments256

7.2.4.15. The HIH Royal Commission Report of 2003256

7.2.4.16. The Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act of 2004 (The CLERP 9 Act)257

7.2.5. Overview of the Formation and Development of Australian Securities Regulatory Regime258

7.3. The Establishment and Development of the Disclosure Regulatory Framework in Australia259

7.3.1. The Sources of Corporate Disclosure Rules in Australia261

7.3.2. What Information Should Be Disclosed?264

7.3.2.1. Prospectus and Other Forms of Disclosure for Fundraising in the Primary Market264

7.3.2.2. Periodic Disclosure in the Secondary Market265

7.3.2.3. Continuous Disclosure267

7.3.2.4. Specific Disclosure270

7.3.2.4.1. Content of Specific Disclosure270

7.3.2.4.2. Disclosure of Corporate Governance Practices271

7.3.2.4.3. Disclosure of Directors' Remuneration272

7.3.2.4.4. Disclosure of Short Selling272

7.3.3. The Establishment of a Mandatory Disclosure Regulatory Regime in Australia273

7.3.4. Standards for Disclosure277

7.3.4.1. Statutory Standards for Financial Reporting277

7.3.4.2. Professional Standards for Disclosure277

7.3.4.3. The Disclosure Standards of ASIC278

7.3.5. Duty of Disclosure: Does a Company Director or the Company Owe Such a Duty to Shareholders?279

7.3.6. The Theoretical Debates over Mandatory Corporate Disclosure282

7.3.6.1. Unequal Possession of Information among Investors283

7.3.6.2. Monitoring of Management284

7.3.6.3. The Social Waste Hypothesis285

7.3.6.4. The Public Good Hypothesis286

7.3.6.5. The Public Choice Theory287

7.3.6.6. The Efficient Capital Market Hypothesis287

7.3.7. Overview of the Establishment of the Australian Securities Regulation Framework289

7.4. The Participants of Securities Regulation and Their Roles in Disclosure Regulation290

7.4.1. The History of ASIC290

7.4.2. Functions and Powers of ASIC291

7.4.3. Functions of the ASX in Disclosure Regulation293

7.4.4. Functions of Corporations and Markets Advisory Committee295

7.4.5. Quality of Disclosure in Australia296

7.5. The Australian Securities Market and Globalization298

7.6. The Securities Disclosure Regime in Australia and Its Adoption of Foreign Experiences298

7.6.1. The Influence of English Law299

7.6.2. The Influence of US Law299

7.6.3. The Canadian Influence300

7.7. Conclusion301

Chapter 8 Conclusions and Suggestions303

8.1. Introduction303

8.2. Law as Culture305

8.3. Law as Politics307

8.4. Law and Its Economic Implications308

8.5. The Establishment and Development of the PRC Corporate Disclosure Regime: What Has Been the Effect?309

8.6. The Choice of Foreign Corporate Disclosure Models and Its Impact on the PRC's Practices311

8.7. Directors' Duties of Disclosure312

8.8. Shareholders' Remedies312

8.9. Conclusion and Suggestions314

Bibliography319

Index345