The Comparative Research On The Pre-suit Requirement Of Shareholders' Derivative Suits Between China And American

After twenty century, company appeared to be a trend that the right of ownership and the power of management are separated. Major stockholders, directors and trustees in a company are master of the powers of management and making policy. The system of derivative suit by stockholders has been established to defend the interests of the numerous minor stockholders and to balance the expanding power of the manager. Shareholders'Derivative Suits has developed widely in western countries for more than a hundred years. It play an important role in minority shareholders protection and company governance constitution. Until now, the shareholder derivative suit has developed very well in the U.S.A, whatever on the party of the suit, the pre-suit demand or other aspects. As to the pre-demand procedural, it regulate the organ who accept the demand, the exception of the pre-demand principle, and the rejection of the demand .But 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 regulations about organ who accept the demand, the failure of demand, the exception of pre-demand are just some inkling. Because the practices in China is deficient, many scholars in our country have given some valuable advise and suggestions. Some of them suggests that we disaccustom the legislation tradition and thinking pattern that we always complied ,and use the American derivative suit system for reference ,such as SLC;Others argued that we should just improve the existing company constitution .The writer is inclined to the latter based on the situation of our country. There are many questions worth studying in the derivative suits system, and this dissertation focuses on the pre-suit requirement, hoping it make sense.This article is made up by two parts---the introduction and the text,which is divided into three chapter.Chapterâ… introduce the theory basis of shareholder derivative suit .It focus on the conception and history of derivative suit, the conception and value of the pre-suit demand procedure. It is the reason and motive we research it.Chapterâ…¡is the comparison on the shareholder derivative suit between China and the U.S.A from the aspect of the form and content of pre-suit demand, the period that the shareholder have to wait after he submit the demand, the organ that accept the demand, the exception of the demand principle---demand futile and the effectiveness of rejection of demand. We will find that the derivative suit system in our country is comparatively faultiness and superficial. At the time we highly praise the perfect of the derivative suit system in the U.S.A, we hope we can improve our system on the basis of our situation as soon as possible.Chapterâ…¢is reconstruction of our shareholder derivative suit system. The writer advice that we make more clearly regulations on the content of demand, the organ who accept the demand, and so on. And meanwhile the writer show is opposite voice against some scholar who suggest us to introduce SLC like the U.S.A. In stead of it, the writer think we should improve the derivative suit system considering the situation of our country.