A Comparative Study On The Company Derivative Action System Between China And Foreign Countries

Among different nations'present company laws, the shareholders equality principle is the key principle to hold together the company's internal relations. It has great significance in protecting the shareholders'rights and interests, preventing the powerful shareholders'peremptoriness and dogmatism. But due to the existence of the capital amount- deciding principle, the rights of the the shareholders who have held the most of stocks superior shareholders who hold only a few stocks have. Therefore, the agendas, proposals and resolutions made by the stockholers' conference basically reflects the will of the the shareholders who have held the most of stocks; whereas, for shareholders who hold only a few stocks and lie in weak status, their will is severely disregarded. While the company's independency is continuously strengthened and the operators'rights have been enlarged day by day, the operators'behavioral criterion of responsibility to the company has not been synchronically strengthened.Pleasingly, the issue of the new company law in our country has laid a foundation for the localized development of this system. However, while acclaiming for the great progress, the author is also calmly thinking that this system has existed for centuries, how can we explain the jurisprudential base for its existence, and what values and functions it has showed; what difference it has compared with the direct lawsuit system; and as a way for the shareholders to take advantage of the judicature to restrict the directors to fulfill their obligations to the company, the system is an important mechanism to conciliate the conflicts of interests between the company's agents and trustees under the market economy. At the beginning of its foundation, although it has been long expected among the academia and practice, and it has accumulated certain experiences, after all, it is a localized appliance of alien regulation, where the practical blocks lies, what confusions has still existed in theory, and whether the reference use of the alien essence can apply to our nation. In this article, through the historical analysis and comparative research, from the four aspects- the body of the institutive power, the defendant range and the company status, the restricted mechanism for the abuse of the institutive power and the lawsuit outcome ascription, the writer will make a particular comparison on this system's legislation among different countries of the world, in order to table proposals for the perfectness of this new system in our country and to clear obstacles for this systems'localized growth.