Research On The System Of Shareholders Representative Action

Britain&the United States is the world's first create shareholder representative lawsuit of country, is the current representative lawsuit system the most complete and advanced countries, the system and later as a continental law system of Anglo-American law system and other nations successively established. Two big law countries legislature in succession constructs the operator characteristics of the shareholders representing litigation system. Continental law system country into the system, based on the plaintiff shareholders in its own name, represent the company prosecution, will this system is called "shareholders representing lawsuits. Basic meaning is refers to the company cannot to infringement claims subject company rights claim for damages pursue its liability, the plaintiff shareholders can be based on its on the ownership of shares of the company in its own name, on behalf of the company, exercise the claim for damages. Representatives of shareholders in the company's interest litigation system maintenance, medium and small shareholders protection of rights, the perfect of corporate governance, ensure the effective shareholders' supervision company has important significance. This system realizes the shareholders of the company actively, strengthening the supervision of management personnel supervision and restraint, from external judicatory way to protect the interests of the company.As to the company operation standardization and small and medium shareholders protection of rights and a growing concern, my theorists and judicial common affirmation shareholders representing lawsuit system positive meaning. On October 27,2005 the 18th session of the NPC standing committee on through the PRC company law (amendment)", the company made bigger modification, he absorbed foreign of some effective practice, created many new legal system, which in a sound to shareholders, especially small and medium shareholders' interests in the protection mechanism stipulated the shareholders representing litigation system. The company law embodies the first 152 regulation, if the company directors, supervisors, managers, controlling shareholders and the third person encroachment company interests, and company's board of directors or supervisors and refuse or delay in responding to a lawsuit, the perpetrator of any of the shareholders of a limited liability company, joint stock limited company in consecutive 180 above alone or combined holding company 1% above of shareholders shall have the right to for the interests of the company in its own name directly to a people's court for shareholders representing litigation. Above provisions, greatly enhancing medium and small shareholders monitoring company executives and controlling shareholders enthusiasm and creativity, make most controlling shareholder, actual controller and business operators more honest and trustworthy, diligently, to prevent the directors, supervisors, managers and other senior management personnel infringe upon the interests of the company, promote corporate governance results perfect, protect the lawful rights and interests of small and medium shareholders undoubtedly have huge promoter action. The author analyzed from shareholders representing the basic theories of litigation, based on relevant countries and regions shareholders representing litigation legislation and judicial practice experience summary, discusses our country representatives of shareholders litigation system, analyzes the problems in the system and to perfect our shareholders representing litigation system in bold conception, puts forward some to China's national conditions and shareholders representing the lawsuit theory foundation of shallow view.This paper except the introduction, endnotes includes four parts:the first part mainly introduced the shareholders representing litigation system concept and basic characteristics, and with the shareholders directly lawsuit system and subrogation system, and analyzes on shareholders representing lawsuit later remedy function and advance inhibit function. The second part mainly introduced the UK, USA, Germany, Japan and Taiwan shareholders representing litigation system, and based on the various countries and regions, and sums up the system design of the legislation of our country enlightenment. This chapter on two big law about partner in representative lawsuit system of the parties (including the plaintiff partner qualification problems and defendant range), company legal status, the procedure of prerequisite and guarantee system of litigation costs and other procedural rules and compares simple evaluation, and summarizes these institutional their inspiration to China. The third part mainly introduced our shareholders representing litigation system of legislation, the main existing problems include:the parties is not clear, Company's legal status is not clear, Shareholders representing limitation is harsh, Jurisdiction not clear, The prepositional procedure signifies little and the lack of incentive and restraint mechanisms, etc. The fourth part mainly introduced the perfect our shareholders representative lawsuit system conception. Mainly includes:perfecting shareholder representative lawsuit client, clear shareholders representing proceedings in the company's legal status, formulate shareholders representing litigant effectiveness for a special provisions, clear shareholders representing litigation jurisdiction, perfecting shareholder representative lawsuit prepositional procedure, constructing the shareholders representing litigation incentive mechanism, construction of shareholders representing litigation restriction mechanism.