Study On The Litigation System Of Shareholder Representative Action & Its Completeness In China

The litigation system of shareholder representative action ("the lawsuit system" ),which originated from the British Equity during the early 19th century, established relevant regulations step by step through continuous development and completeness . However, it was not until year 2005 did China first legislated and established the lawsuit system,which merely settled principle regulations on the lawsuit system, more precise rules are required for operation in juridical practice.By discussing the lawsuit system on basis of the principle theory with comparison and article studies, while combined with the relevant provision 152 in the "Company Law" under perspectives of the system's prepositional procedure and reconciliation system, the paper aims to submit the corresponding suggestions to improve the current lawsuit system.The paper has introduction and main-body. Main-body is divided into three chapters:The 1st Chapter, the overview of the lawsuit system. This chapter supports the fundamental theory by mainly focusing on introducing the concept of the litigation, the comparison between the litigation and its similar ideas, the origin of the litigation and its development, the lawsuit system in Taiwan and Japan. The 2~nd Chapter, the establishment of the lawsuit system in mainla~nd China. This chapter is to u~ndersta~nd the lawsuit system in China from a macro perspective by mainly introducing the history of the lawsuit system, the legislation, the historical meaning by injecting the "Company Law" into the lawsuit system.The 3rd Chapter, the improvement of the lawsuit system. As the core part in this paper, this chapter is to offer detailed suggestions in the following aspects:I. The suggestions primarily for the the lawsuit procedures:1. For the preceding procedure of the lawsuit system, the author puts forward the suggestion of how to define a~nd who to define "urgent situation" in the "Company Law"; suggestion of the rules on request advice etc.2. For the jurisdiction of the lawsuit system, the author puts forward the suggestion of the adaptable "company location" jurisdiction system, that is, the People's Court responsible for the lawsuit should be the the exclusive juridical court in the area of the company location.3. For the reconciliation system, the author puts forward the suggestion that the parties should be granted for reconciliation allowance. In China's present legislation, there has been no regulations on the reconciliation system for litigation. In order to prevent the shareholders a~nd defe~ndants from making malicious collaboration a~nd hence harming the interests of the company, the reconciliation procedure a~nd its legal effect must be noticed.â…¡. For the party system of the shareholder litigants, the author puts forward the suggestion that other shareholder litigants, "others" in the "Company Law" (controlling shareholder, the actual control, other shareholders) a~nd any third party outside the company that harms the interests of the company shall be allowed to participate in lawsuit.III. For the existing problem in the current system of litigation guarantee fees, the author puts forward the following suggestions: A. Minority shareholders as the plaintiff shall not be required to submit litigation guarantee fees so that those who lack the economic strength will not be i~ndirectly deprived their prosecution right; B. The defe~ndant shall not enjoy the right to decide whether or not the plaintiff should submit guarantee fees. Instead, the court should exercise the right to make such decisions.