The Research On The Essence Of Derivative Suits

With the trend from 'the centralism of board of shareholders'to 'the centralism of board of directors', the power of the directors is dramatically increasing, which leads to the hurt of the shareholders'benefits. In practical operation, the number of the existence of infringing the corps'interests by directors, managers is numerous. However, the infringed corps slacks to go to court, which may result in the benefits losses of small-and-media shareholders and corps as well. Therefore, many developed countries reinforce the supervisory right on the members of board of directors as well as board itself by establishing the institution of derivative suits. Originating in the British, the derivative suits has turned out to be a useful legal approach in many aspects, also in many nations. Considering the lack of legislation and litigation of the derivative suits in China, the corps, even the shareholders can't effectively protect their own interests. Therefore, the legislation of derivative suits is in the great pressure, whereas the judicatory interpretation and relative cases has been ruled out. In addition, the China's Supreme Court published in the end of 2003 and the People's Congress is in the process of amending , which has and will promote the speed of founding derivative suits. Since the essence of the right plays an important role in legislation, I'll focus on this field as well as the comparative laws to comprehensively discuss the derivative suits and give my own suggestions. This article is divided into 4 chapters. The chapters'structure is as followed: Part One: The Analysis of Legal Theory on Derivative Suits, including the development history, the characters and the functions, etc. Considering the diversity of the legal theories, I will introduce and analyze the representatives. Part Two: The Discuss of the Right to Litigation of Derivative Suits. After comparing the three theories named Creditors Subrogation, Right of Entrust Beneficiary and Co-interests of Shareholders, I will conclude the essence of the right to litigation of derivative suits. Part Three: The Performance of the right to litigation of derivative suits in provision. The provisions of reasonable confinement to the right of co-interests, in my opinion, may include the plaintiff's qualification, the procedural law, the result, the recession as well as the reconciliation of lawsuit. Part Four: The Legislative Suggestion to the Establishment of Derivative Suits in China, including the application range of derivative suits, the limit of plaintiff, litigation procedure, how to compromise, withdraw and reject the litigation, etc.