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Study On The Shareholders' Derivative Suits

Posted on:2011-08-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:H LiFull Text:PDF
GTID:1116360332456977Subject:Civil and Commercial Law
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Shareholder's derivative suits imply such suits that where the corporations neglects or deny to bring a lawsuit after the legal interests of the corporation are violated by the director, supervisor, manager, the shareholders of the corporation can bring such a lawsuit for the interests of the corporation in their own names with the judged damages turned in to the corporation. Shareholder's derivative suits are one of the most creative lawsuit institutions, and are called a genius invention of the common law system. The paper starts as a real case of Shareholder's derivative suits, and study four basic problems, i.e. the general theory, the historical examination, judicial construction, reflection and perfection of the shareholder's derivative suits.This paper is divided into four chapters. They are as follows:Chapter One the General Theory of Shareholders'Derivative SuitsFor the deep study of the shareholders'derivative suits as the genius lawsuits, we must start as of the basic part, i.e. the general theory. This chapter focuses on the name and definition of the shareholders'derivative suits, reads the theoretical basis of the shareholders'derivative suits, and analyzes the value orientation.In this chapter, we first study the definition of the shareholders'derivative suits. Before the study of the definition of the shareholders'derivative suits, we study the name of the shareholders'derivative suits. This paper selects the shareholders'derivative suits as the name, and gives its own reason. Then, we study and absorb many kinds of theories, and propose our own understanding of the shareholders'derivative suits. In order to further find out the definition, we further analyzes the relations among the shareholders'derivative suits, the shareholders'direct suits, the representative suits, subrogation litigation, and point out their difference and interrelation.For the theoretical basis of the shareholders'derivative suits, this paper explains it from both substantive law and procedural law. The theoretical basis of substantive law are corporation autonomy theory and equality of shareholders theory, the The theoretical basis of procedural law are the procedural parties theory and the judicial review theory.The last part of the chapter studies the value orientation of the shareholders'derivative suits. We propose that freedom and order, fairness and efficiency are the values orientation of the shareholders'derivative suits, between which balances and coordinates.Chapter Two the Historical Examination of the Shareholders'Derivative Suits.After the general theory of the shareholders'derivative suits, the historical examination reflects the experiences and shortcomings of many shareholders'derivative suits systems, and provides historical basis for the construction of the shareholders'derivative suits by the examination of the main shareholders'derivative suits systems of both law systems. In this chapter, we analyzes both their evolution of both the common law and civil law countries, which provides the full foundation of the construction of the shareholders'derivative suits.Chapter two includes two parts. The former part examines the shareholders'derivative suits of the common law system, studies their system evolution and development, and compares them。The latter part examines the shareholders'derivative suits of the civil law, which transplant and learn from the common law system. We mainly select Germany and Japan as the model, which is reflected and compared.Chapter Three the Judicial Construction of the Shareholders'Derivative SuitsAfter the historical examination of the shareholders'derivative suits, the judicial construction of the shareholders'derivative suits the full reviews the function, the framework and contents of the shareholders'derivative suits. Considering the shareholders'derivative Suit is itself a litigation system dependent on the operation of the of the justice, the main questions focusing on the judicial level and judicial level problems as our shareholders'derivative Suits system's first need, this chapter selects the judicial construction of the shareholders'derivative suits as the focus of the study.In the third chapter, we carry out on the systems and the judicial construction of the shareholders'derivative suits from three major aspects, i.e. the judicial intervention, judicial review and the judicial judgment of justice. Among them, the judicial intervention includes the subject of litigation, the pre-procedure, the guarantees of the litigation cost and the lawsuit jurisdiction. In the part of the judicial review of the Shareholders'derivative suits, we discuss the meaning and principles of judicial review, analyzes the scope and standards of judicial review. In the part of the Judgment of the Shareholders'derivative suits, we discuss the issues of litigation costs and damages of the shareholders'derivative suits. In the discussion of these issues, this paper full draws the legislative and judicial practice abroad, and analyzes them combining the conditions of our country.Chapter Four the Reflection and Improvement of the Shareholders'Derivative Suits.The judicial construction of the Shareholders'Derivative suits, mainly start from the point of ideal view. In order to let this ideal design be converted to reality, it must withstand the test of the reality in our country. This chapter reflects the development of the shareholder derivative suits in our country, reflects the real problems of the shareholder derivative suits in our country, and proposes the overall idea of improving the system of the shareholders'derivative suits, through which achieving the system goal of the shareholders'derivative suits, .The shareholders'derivative suits of the mainland of China, are the product of transplant and learning of foreign legislation and jurisdiction, which has gone from three stages, i.e. the budding, the discovering and the legislative confirmation. However, our shareholders derivative suits are far from mature. The new corporation Law acknowledges the shareholders'derivative suits, but did not play the role originally envisaged, which is caused by all kinds of factors, such as the market mechanism imperfections, the legislative norms incompleteness, the incompleteness of judicial system and the backwardness of ideas. In order to make our shareholders'derivative suits system truly become a reality, the shareholders'derivative suitss must be properly improved. Improving shareholders'derivative suits should encourage the proper suits and prevent speculative behavior, respect the autonomy of the corporation and make limited judicial intervention, safeguard the interests of minority shareholders under the premise of protection of the interest of the corporation, by which to enrich and enhance the specific rules of the shareholders'derivative suits.
Keywords/Search Tags:Shareholder, Derivative Suits, Corporation
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