Study On The System Of Shareholder's Derivative Action In China

Shareholder's derivative action system is an important system of company legislations in the world's major market economy countries. It has a special role in standardizing its major shareholders and directors, senior management and other actions and defending the interests of small shareholders. Shareholder's derivative litigation system is originated in the mid-19th century of England, which is birthed on the court of equity of the British and to be learned by other countries of the Anglo-American law and civil law systems and which is an important litigation system in protecting corporate interests and indirect to protect the interests of shareholders. With the development of the corporate system, China amended the existing Companies Act in October 2005 and established the shareholder derivative litigation system, which have an undoubtedly and milestone Significance. However, China's system of shareholder derivative lawsuit which are many flaws and deficiencies, such as legislative time is short, legislative is crude, judicial experience is not rich, the academic study on shareholder derivative litigation is not deep. Because of the constraints of our shareholder derivative lawsuit status, the courts are faced with a number of new and difficult procedural and institutional issues. For the court facing many problems, there is no uniform application of domestic legislation or judicial interpretations and therefore improve our shareholder derivative lawsuit system will become more necessary and important.To improve shareholder's derivative litigation system, one of the core issues to be resolved is how the shareholder's derivative litigation in a variety of conflicting factors to seek balance. The autonomy of corporate governance and the limitation of judicial intervention decided the significant difference between the shareholder derivative litigation and general civil litigation. The difference is reflected not only in the basic system of litigation, but also reflected in the specific programs to run on. So, only constructing a good shareholder's derivative litigation system does achieve its functions and purpose. In this paper, on the perspective of the shareholder derivative lawsuit basic systems and procedures improvement, that explored many problems on the shareholder derivative lawsuit system in the legislative, judicial and social practice in order to desire for legislative or judicial practice to provide theoretical guidance and the shape of specific rules. The paper has eight chapters, as follows:The first chapter has a deep study on some basic questions of the shareholder derivative action system. First of all, based on the theory of the right of suit, explored the substantive law and procedural law basis on the shareholder derivative lawsuit. Secondly, a detailed analysis of which the plaintiffs filed shareholder derivative lawsuit should have the qualifications of shareholders, the defendant determination and the accounted acts in the shareholder derivative lawsuit as well as the company, other shareholders'status in the proceedings. Finally, analyzed and discussed the special rights and obligations of the plaintiff shareholders, the company and other shareholders in derivative litigation proceedings. Chapterâ…¡studies on the jurisdiction and trial organizations of the shareholder derivative litigation. Firstly,the article introduced the extraterritorial jurisdiction of the shareholder derivative litigation and China's academic perspective on the jurisdiction of the shareholder derivative action, as well as the jurisdiction of the judicial practices of the shareholder derivative action,discussed the principles of jurisdiction, then came to the conclusion that Intermediate People's Court have the shareholder derivative litigation jurisdiction.Secondly, researched the trial organizations of the shareholder derivative litigation and recommended that shareholders derivative litigation should be composed of experts in the Full Court and take the jury system to hearing and refree.Chapter III studies the proof system of the shareholder derivative litigation.First of all, classified the proof objects about the shareholders derivative litigation, including the fact that the substantive law and procedural law facts. Secondly, analyzed the burden of proof on the shareholder derivative litigation; because the information to prove violations of company directors and other executives'interest litigation is generally controlled by the company and the defendant, it is suggested that the burden of proof should give full consideration to the allocation of the plaintiff shareholders weak to testify on the relevant facts in the proof of principle to take responsibility for the inverted.Chapter IV researches the shareholder derivative litigation costs and the related system. Firstly, based on a comparative analysis legal costs of collection standards of the shareholder derivative lawsuits and although for the case of property, but because of the plaintiff shareholders to pay legal costs of limited means, it is proposed to the shareholders as a non- property cases. Secondly, the shareholder derivative litigation costs of a security system was discussed, based on the current state of our derivative litigation, suggest not introduce the cost of litigation system in order to promote the application of the shareholder derivative lawsuit. Finally, introduce the extra cost of the shareholder derivative litigation compensation system, China should also introduce the proposed shareholder derivative litigation costs compensation system, compensate the plaintiff-shareholder derivative lawsuit costs for filing the suit on behalf of the company.Chapter V analysis and researches the shareholder derivative lawsuits were filed and dismissed. First of all, learn the related extra-territorial approach on the basis of our shareholder derivative lawsuit against the elements and concrete barriers and so on; point out our pre-procedural shortcomings and make corresponding proposals to improve the shareholder derivative suit. Secondly, analysis and build our shareholders derivative lawsuit was dismissed, including the cases will be dismissed in the shareholder derivative lawsuit, procedures of rejecting the request of the derivative litigation and standards for judicial.Chapter VI studies that the special circumstances against first proceedings of the shareholder derivative lawsuit. First of all, analyzed the special circumstances of merger in the shareholder derivative lawsuit, proof that the plaintiff in shareholder lawsuits may increase its claims, but the request must have the nature of the derivative lawsuit and the defendant can not be filed counterclaims. Secondly, analyzed the drop and the settlement system, as well as the suspension of the proceedings in the shareholder derivative lawsuit; the plaintiff shareholders to be withdrawn, subject to judicial review, the company can not drop the request. The shareholder derivative lawsuit settlement needs to go through the judicial review and subject to certain procedures and according to certain standards of judicial review. Finally, clarified and cleared the shareholder derivative lawsuit in the identification of limitations, including limitation of the judge, time, the starting, with the suspension of interruption, and so on.Chapter VII studies the res judicata of the shareholder derivative lawsuits. This chapter discusses the shareholder derivative litigation judgment's res judicata scope, defined the scope of its objective and subjective scope and time frame.Chapter VIII discusses and studied the shareholder derivative litigation retrial. This chapter described the extraterritorial retrial of derivative litigation system, and analyzed and built some issues involved China's shareholder derivative litigation retrial procedure, including the launch of the main retrial procedure, retrial reason, a court of jurisdiction, the retrial time, just as parties and so on.Finally, according to the legislative and judicial status of China's shareholder derivative litigation, the part of this article concluded the drafting of China's People's Court shareholder derivative litigation cases the provisions of a number of issues, with a view of our shareholders derivative litigation legislation and judicial interpretation of the proposed introduction of reference.