Hareholders Derivative Action Legal System Research

The shareholders'rights protection system, shareholder derivative action is undoubtedly one of the important system. Early in the 19th century, British and American national balance law the shareholder derivative lawsuit system, after hundreds of years of evolution, Shareholder derivative litigation system has become a mature and Anglo-American countries than effective system. It helps to ensure that the company's legitimate rights and interests from the directors, supervisors and senior management personnel, the infringed, third party, At the same time it in making up the company internal governance structure defects, and maintain the legitimate rights and interests small and medium shareholders plays an important role. Along with the rapid development of market economy, Confronted with a perfect our internal governance structure of urgent need, so in 2005 the newly revised the company law article 152 of specified by the shareholder derivative lawsuit system, But because our country to shareholder derivative action system research startting evening, theoretical foundation was weak, this paper in order to deepen shareholder derivative action for basic theory of understanding, first to shareholders by introducing theory derivative action basis, From the two aspects of substantive law and procedural law of shareholders the theoretical basis of derivative action produce has deepened understand. Our country"company law"in shareholder derivative litigation system exists many disadvantages and blank, by Chinese shareholder derivative action first case–"hengtong company case"analysis, and pointed out the existing legislation on"company law"several main disadvantages. In this case, Based on the related access to large Numbers of foreign material, reference and discusses the relevant countries advanced legislative experience, and compares and analyzes the first, The paper summarizes some can apply our mature legislative experience. The innovation of this paper lies in the reference of foreign mature legislation in based on the experience and practice of shareholder derivative litigation system, improve our legislation, derivative action for shareholders to the preceding procedure reconstructed and its client system perfect sex advice such as: Introduce"pure hand"theory; Request the plaintiff shareholder in the subjective aspect with a full and fair represent the interests of the company, etc. Second is to shareholders the belonging of the derivative action results made of corresponding provisions, such as: provisions of the plaintiff accused the liability to pay compensation; Requires malicious plaintiffs lose to the defendant and shareholders of the company when the liability for compensation; Both sides want regulations if the original defendant to reach a settlement agreement to keep some restrictions. Finally the author suggest in our shareholders in introducing derived lawsuit system of double shareholder derivative action system regulation and puts forward some concrete constructive idea, to perfect our association of collectivization, to small and medium shareholders of enterprises in the protection of the legal rights and interests, make it suitable for our market economy development to company internal management needs.