Comparative Research On Shareholder Derivative Suit Of Modern Corporation Law

With market-orient economy developing, modern corporation law is more and more perfect, especially in reform of the construction of corporate governance .It is that power of corporation is transited to the board of directors from shareholders. With the power of the board of director expanding actually, directors and officers often abuse the power to damage the corporation and its shareholders right. As to the directors and officers' wrong doing, corporation, through his organization, should have suit against the wrongdoers, because the power of corporation is commanded by the directors and officers, persons who are in control of the corporation are unlikely to authorize it to bring suit against themselves personally. Under this circumstance, if not promise shareholders' rights to action against the illegitimate directors and officers, which contradict with the legal theory that "there is compensation while rights are damaged". As for many shareholders, it is manifest unfair, therefore, modern corporate law enforces shareholders individual legal statue when expanding directors' power. Endue the right to action against directors and officers for the corporate profits, it is modern corporate law famous institution: derivative suits. A derivative suit is an action brought by one or more shareholders to remedy or prevent a wrong to the corporation. This mechanism originated in common law. The principal justification for permitting derivative suit is that it provides a device by which shareholders may enforce claims of the corporation against managing officers and directors of the corporation. Up to date, china has yet adopted shareholders' derivative action. Therefore, in real world in our country protecting the right of shareholders does always not realized. By comparative study and systematic analysis, this thesis's main focus is that conception and procedure of derivative action, demand on shareholders, demand on directors and litigation committees, effect of derivative suit, etc. Basing on systematic analysis, the author presents many suggestions, both on the legislative and interpretative level, and from the viewpoints of corporation law and civil procedure law. This thesis may help to diminish the academic gaps in this field in China.