A Research On The System Of Shareholder's Derivative Suit

As the most familiar business enterprise, company plays a very important role in the modern economy life . After twenty century, company appeared to be a trend that the right of ownership and the power of management are separated. Major stockholders, directors and trustees in a company are master of the powers of management and making policy. The system of derivative suit by stockholders has been established to defend the interests of the numerous minor stockholders and to balance the expanding power of the manager. What shareholder's derivative suit points out is that when corporation's interests are damaged and it don't be will to act, in order to preserve corporation's interest, the shareholders take action by legal procedure. This system is oriented by England and the U.S.A. As an important method for protection of the lawful rights and interest of minority shareholders , it is acknowledged by corporation legislations of majority countries of the world. It is of a significant sense of borrowing from the useful foreign experience and set up a legal system of the shareholder's derivative suits with China's characteristics. This article makes an outline and study of some important theoretic issues existing in the shareholder's derivative suits system , analyzes and concludes the concrete regime device of U.S.A , Japan and Taiwan , such as the party shareholder's derivative suits , litigation demand requirement and so on, by a careful comparative study . Based on the above discussion , this paper gives some proposals and suggestions on how to establish shareholder's derivative suit legal system. The article is made up of four parts : Part I mainly is the summarize of stockholder's derivative suit, which forms the focuses of this paper. The first, it reveals the conception and character of shareholder's derivative suit. It makes a comparative study on the relation between shareholder's derivative suit and direct suit. The second, it traces the history and development of shareholder's derivative suit. The third, it explain the theory foundation and realistic foundation of shareholder's derivative suit The last, it discusses the value and function of shareholder's derivative suit. It analyzes the necessity and significance of bringing shareholder's derivative suit to our country. Part II is the body of shareholder's derivative suit legal relation. It reviews and analyzes, by a comparative study of corporation legislation in U.S.A , Japan and China's Taiwan, the party systems such as the plaintiff, the defendant , the corporation and the court-house, with an emphasis on the qualification of the plaintiff, the extension of the defendant, the degree and the use of the corporation and the court-house in the shareholder's derivative suit. Part III is the research of shareholder's litigation rights in the shareholder's derivative suit. The jurisprudential bases of shareholder's litigation rights are mainly touched upon two aspects: procedural law and substantive law. Of all the theories in different countries relating to the search of the jurisprudential bases of shareholder's litigation rights from the aspect of the claim basis of substantive law, the typical views are : the theory of jurisprudential bases of and the theory of construction. The author is liable to the theory of construction. At present , relate to the jurisprudential bases of the procedure of jurisprudential bases of, there are mainly two theories: lawsuit undertake theory and generalized litigant theory. The latter precisely holds the basis and kernel in the process of litigation rights transfer of shareholder's derivative suit---the right and interest relationship, and, reasonably explain the question of the source of the properness of shareholder's litigation rights. Part IV is the stress of this article ,and also is the creation. It mainly designs that how to bring shareholder's derivative suit to our country. It discuss the prevalent status quo of derivative suit system, take an insight into the necessity of this system in china. Based on the judicial interpretation of the present legislation, the author puts forward some effective suggestions and proposals. By a comparative study of corporation legislation in developed countries and areas of the world, in view of our country's realistic situations, it gives concrete legislate suggestions about the party system in the stockholder's derivative suit , the pre-suit requestor of the stockholder's derivative suit, lawsuit fee guaranty system and the compensation system in the stockholder's derivative suit. In my opinion, at present, our country is lack of stockholder's derivative suit, not flooded. So, the core of the stockholder's derivative suit system of our country is that we should encourage shareholder to bring derivative suit. Besides, The concrete system should be in favour of shareholders bringing derivative suit actively .