A Legal Study On The Pre-suit Requirement Of Shareholders' Derivative Suits

Shareholders'Derivative Suits has developed widely in western countries for more than a hundred years. It is now a conventional corporation system in minority shareholders protection and is a constitution in corporation governance. The demand made to the company organ before the shareholders raise a suit is called the pre-suit requirement, which is a necessity out of derivative suits'character. As to China, the derivative suits system is a new one, introduced in the 2005 Company Law for the first time, in which the pre-suit requirement is mainly regulated in article 152. But the article itself is so general and the practices in China deficient, that we need to study the western rule more attentive to perfect China's company law and prepare for the actual suits. There are many questions worth studying in the derivative suits system, and this dissertation focuses on the pre-suit requirement, hoping it make sense.Since USA erects a relatively mature rule system in this area, this dissertation is making researches mainly on the basis of the American statutes and case law, and the particular conditions of China as well. It consists of two parts: first the introduction, and then the text. The structure of the text is as follows:Chapterâ… is a general introduction of the whole derivative suits system. In this part, the author concludes its litigation and the theory basis, based on which, points out pre-suit requirement is a must before litigation.Chapterâ…¡mainly discusses the theory of the pre-suit requirement, including two parts: the definition of the pre-suit requirement, and its principle. Here, the author emphases on the exhaustion of internal remedies and demand futility in the procedure, and then recommends on the application of them in continental countries and China as well.Chapterâ…¢is the procedure analysis, focusing on the pre-suit demand. This part involves the form, the accepting organ of the demand, and the effect of the decision made by the organ, etc. And though all these, there are applications related to China's conditions.Chapterâ…£focuses on the examination of the company decision. Here, the author refers the US business judgment rule and special litigation committee in the pre-suit requirement, and discusses the possibility of China's application of these rules.Chapterâ…¤is the conclusion of the dissertation, analyzing China's litigation on the pre-suit requirement , and makes some improvement suggestions.