Research On The Comparison Of Shareholder Derivative Action System Between China And Japan

Shareholder Representative Lawsuit ( hereinafter referred to as "SRL" ) has a history of hundred years as an important part of Company Law, which has been a regular system of Company law in the aspect of protecting the rights of middle-small shareholders. From the general point of view, it is also a necessary part of Corporate Governance. Shareholder Representative Lawsuit was introduced to Japan in the 1995s and has become a perfect system after the development of more than half century. As for our country, it is first introduced in newly-revised Company Law on Oct 27, 2005. Due to its general specifications, it can't cater for the development of our economy. Therefore, it requires a deep research based on the foreign legislative regulations and makes preparations for the perfect of Company Law and Procedural Law in China.Based on the theory of Shareholder Representative Lawsuit and the relevant law of Japanese law, this article makes an analysis on the deficiency of the perfect system of Shareholder Representative Lawsuit in China and gives an advice on how to establish a perfect system of SRL system in China.This article consists of two parts. One part is the profile and the other is the text. The text includes four chapters as follows:Chapter one is the analysis of the theory of Shareholder Representative Lawsuit. This chapter mainly introduces the concept, characters, functions and values of Shareholder Representative Lawsuit; it also tells us about the nature of the right of lawsuit.Chapter two is about the generation, development and evolution of Shareholder Representative Lawsuit. Firstly, it introduces the generation and development in U. S. A and England in order to get knowledge of the resource of Shareholder Representative Lawsuit; secondly, it introduces us about the reform of this system in Japan; in the end, it tells us about the deficiency of protection of the interests of the middle-small shareholders and it is necessary to establish SRL system. After the establishment of Shareholder Representative Lawsuit System, the interests of the middle-small shareholders shall be protected more according to the relevant regulations of SRL system.Chapter three is the analysis of Shareholder Representative Lawsuit System based on comparison. Japan has introduced this system in the last century and made a thorough research on it, which has a great significance in the establishment of the system in China. This article make a comparison and analysis between the company law of China and Japan on the clients, preceding procedure,litigation guaranty,legal cost, etc.Chapter four is the perfect of legislation on Shareholder Representative Lawsuit System. The legislator encounters two difficulties when it makes regulations, one is the increase of difficulties when the shareholder brings a lawsuit if the procedure is too strict, the other is the malicious lawsuit made by shareholders which perhaps disturbs the normal management of the company and even damage the interests of other shareholders or company if it is too loose. Therefore, it is necessary to balance the two. This article hereby put forward some ideas concerning solving the problem from several aspects as follows: the clients involved in the shareholder representative lawsuit, the excitation mechanism of Shareholder Representative Lawsuit, restriction mechanism of Shareholder Representative Lawsuit and other procedural issues of Shareholder Representative Lawsuit.