The Research On Shareholder's Representative Suit

Shareholder's Representative Suit, also termed Shareholder's Derivative Action,refers a form of action which the shareholder in his own name brings an action against the infringe for the interests of corporation and the compensations gained from the suit belongs to the corporation when the interests of corporation are infringed on and the body refuses or fails to invoke the right to suit which should exercise it.As a genius creation in nations of Common Law, the system has broken through general rules of law in many aspects and played a significant role in safeguarding the rights and in assuring them to effectively supervise on the operation and in perfectingthe administrative structure. For the above reasons, the system has been adopted widely both in the civil law and common law, although it derived from the cases of equity in common law. Unfortunately our country is relative delay of legislation in this aspect and there are no definite provisions on it either in substantive law or in procedural law.Fortunately, the system of Shareholder's Representative Suit has been definitely provided in section 152 in the new Company Law passed on Oct. 27th in 2005 and it has filled up the legislative blank in this aspect. However, we are sorry that some relevant provisions are too principle and the maneuverability isn't very strong; Some provisionsare impractical, needing a further exploration and study; In the meantime the provisionshave some careless omissions. All the above problems provide the author with some space for further study.The article mainly analyzes the comparatively typical and perfect system of shareholder's Representative Suit of foreign countries by means of comparative method and at the same time reflects on the shortage of legislation of it, in order to make the author's personal contribution for the establishment of shareholders representative suit in China.The first chapter elaborated on the elementary theory of shareholder representative action.It introduced the concept and the characteristic shareholder representative action.It contrasted the SRA with the shareholder direct lawsuit, other shareholder representative law suit, and the obligee's lawsuit of subrogation respectively , examining the production and the development of SRA in the British and American legal system and the mainland legal systemThe second chapter mainly explores by comparison and makes a brief evaluation of the relatively perfect and typical system of parties including plaintiff, defendant, the scope of action conduct, the status of corporation in action and the other shareholders' status in action, and so on.The third chapter analyzed the limiting measures of shareholder representive suit, as well as the strengthening of the company to keep balance of the surveillance, perfecting company government.The fourth chapter realistically explores our country's shortage of legislation and current difficulties on Shareholder's Representative Suit before the enactment of the new Company Law and then makes an analysis of the realistic value and existing imperfections on Shareholder's Representative Suit of the new Company Law.The fifth chapter on the basis of summing up the above four parts, analyzes the basic principles of establishing the system of Shareholder's Representative Suit in our country and brings forth the author's opinions of perfecting the legislation in this aspect.