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The Thesis On The Construction Of Shareholder Suit System

Posted on:2007-02-17Degree:MasterType:Thesis
Country:ChinaCandidate:Q B LiangFull Text:PDF
GTID:2166360182985906Subject:Litigation
Abstract/Summary:PDF Full Text Request
It has very important significance to construct shareholder suit system. As a juridicalrelief mean of supervising corporation governance and fulfilling shareholder rights,shareholder suit may check and balance the exploitation of " the majority rule principle",check and balance "the control by inner manager" and ease corporation dead lock.The article makes the legislation analysis to the clauses concerning shareholder suitsystem in the new Corporation Law and the new Securities Law, and makes the relativelycomprehensive study to the basic procedure of shareholder direct suit and derivative suitcombining the Civil Procedure Law and the Criminal Procedure Law.The improvement of shareholder direct suit in our country shows in the improvement ofthe suit reasons, and sets up the transfer share suit and the withdraw share suit and the dismissshare suit on the base of the resolutions of the void confirmation suit and voidable suit and theinspection account books suit made by Meetings of Shareholders and Board of Directors,breaks through the basic rule of the principle of capital preserve and shareholder can notwithdraw their provide funds and can not buy its share after the corporation's establishment,and then establishes the complete capital withdraw mechanism and eases corporation deadlock. In the same time, founds the new responsibility means of compulsory purchase anddismissal the corporation. All of these make shareholder direct suit has obviously differencesfrom the general civil action.The jurisprudence of civil rights of shareholder derivative suit is that obtaining thequalifications of the plaintiff lies in the clear regulation in law. In the given circumstances, itdevelops the theory of parties. In the derivative suit, the derivative jurisprudence of thelimited liability company shareholder is the sole shareholder rights, and of the companylimited by shares is minority shareholder rights. The position of the corporation is similar tothe third man without the sole request rights, and the position of the other shareholders mayhandle according to the rules of common suit and representative figure suit. The demandprocedure of derivative action is the system design to balance efficiency and justice made bylaw, the ownership of the suit result is the system encourage to the plaintiff, the inclusion ofprofits is the system enterprise of the responsibility means, the traditional responsibilitymeans such as returning property, stopping infringement, compensatory damage and so onand so forth, are applied effectively in shareholder derivative suit.The economic ability of minor shareholders in our country is too small and weak,state-owned share is "sole majority shareholders", a special question finds its way in thegoverning practice of the corporation, that is " the control by inner manager under theadministrative intervene of the government". The profit conflict between the holdingshareholders and the minor shareholders is the main problem that our corporations must befaced with, but not the profit conflict between the managers and shareholders in English andAmerican corporations. Therefore, shareholder suit system in our country should restrict therights of the shareholders less than the ones in English-American Law and Germany Law.
Keywords/Search Tags:shareholder's suit, direct suit, derivative suit, procedure
PDF Full Text Request
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