Research On Legal Issues Of Shareholders' Representative Action

The rule of shareholders' representative action started from the sentence of the case that came about in England in 1964. It has been adopted in the corporation laws of the Great Britain, the United States of America, Canada, Japan and Taiwan of China. In our country, it had not been ensured until October, 2005 in the newly revised China Corporation Law. Its establishment will play an important role in improving the management mechanism of companies, assuring the right of small shareholder and company, and promoting the development of market economy. But its limits should be perfected.To research this problem, I examined many books, essays, cases and materials about the situation, difficulties and countermeasures of shareholder's representative action. Based on the legal theories and knowledge, I put emphasis on methods, approaches, troubles and strategies of shareholder's representative action.The company is the main form of enterprise under the market economy condition, and also is a important carrier of the modern enterprise system simultaneously. Therefore, the revision of the company law has provided the more powerful system support, which is to perfect our country company law system for further, establishes regarding our country with the consummation socialist market economy system, the promotion economy development. This new "Company Law", reduced company's threshold, enhanced company's interior to supervise the nuclear degree, has protected center the young shareholder's benefit, was allowed to say this revision had very greatly progressive. But this article emphatically mentions is, in this revision, has improved to the shareholder in particular center young shareholder benefit protection mechanism, including the increase concrete shareholder right, specially increased the shareholder to represent the lawsuit the stipulation, when the director of corporations, manager and so on the high-level administrative personnel has encroached upon the company rights and interests, but the company did not give investigates time, the shareholder was allowed legally to file the lawsuit to the people's court, maintained the company and own rights and interests. This also is the academic theory and the solid service department continuously represents the lawsuit theory in the exploration shareholder. The shareholders' representative action is one of company law hot topics which the domestic and foreign scholars pays attention, the shareholder on behalf of the lawsuit is refers when the company right receives the harm, when should exercise the right of suit company institution on behalf of the company to reject or to be negligent to exercises the lawsuit right, the company shareholders may on behalf of the company carry on the lawsuit the legal system.The shareholders' representative action the content is numerous and disorderly, this article makes every effort in the analysis and elaboration of elementary theory foundation, the shareholder on behalf of the lawsuit and our country company's method legislation present situation, the judicial practice closely contacts with. The author had inquired about from the legal principle theory of law foundation the shareholder represents the lawsuit the implication, combed the shareholder to represent the lawsuit the main body qualifications condition, has analyzed company's lawsuit status and the lawsuit restriction mechanism, constructed the construction and the judicial practice to our country shareholders on behalf of the lawsuit system legislation all has the practical significance. The hope is rich for our country shareholders on behalf of the lawsuit system and perfectly provides the model and the enlightenment.The shareholder's representative action strengthens shareholders' supervision on managerial personnel. It has a positive effect in safeguarding company interest. At the same time, in order to inhibit the malicious abuse of representative action, many countries' company laws have stipulated it strictly. "The Company Law" issued by China has the defects on the shareholder's representative action, and needs improving on the basis of using the experiences of the world advanced legislation for reference. There are legal theory and valuable base that the company shareholder as the Plaintiff representing the company in a suit. To establish this system in China, we should amend the current "Corporation Law" and the "Civil Suit Law". The confirmation of plaintiff's subject qualifications should be considered in two aspects: procedural terms and essential terms. And the shareholder as plaintiff has the special right and duty in suit.In this article, the author analyses the value of the shareholder representative litigation system and suggests that China should establish and consummation such a system in future. The author conducts a comparative research on regulations of different countries in the following five aspects: the shareholder's qualification as the plaintiff, the application scope of this system, the preposition self-remedy procedure for shareholder, the plaintiff's claim rights for litigation charge and proportional compensation. Mean while, some necessary innovations of present civil procedure law should be made to meet the demands of the establishment of this representative litigation system.