Amendment Of Domestic Shareholders' Derivative Action System From The Angle Of That Of America's

The shareholder's derivative action, originated from Common Law system and especially flourished in America, brings great impact on the establishment of that system in other counties and regions. This paper hereby conducts research on its structure, theory, and practice with an aim at suggestion on the improvement of that system in China.The standpoint of derivative action comes from the spirit of equity law in UK, aims to protect minor Shareholders'interest. This legally malformed system, neglects the independent personality of corporation, negates the principle of Decision by Capital of Majority, restricts independent disposal of corporation. So it has implicit distinction from the shareholder's direct action and subrogation action of creditors.The shareholder's derivative action system is still of great significance sinc-e its more than 100 years'establishment. The reasonable foundation of this system is to balance the conflict between shareholders'rights and rights to manage, to improve management structure of corporation, safeguard the lawful rights of Medium small shareholders. Derivative action includes single shareholders'rights and minor shareholders'rights, co-benefactors'rights, inherent rights etc. as for America's derivative action, its nature belongs to single shareholders'rights, co-benefactors'rights and inherent rights. After capital contribution, corporation forms property rights of legal person, while shareholders enjoy equal shareholders'rights. This system shall do a lot to maintain equal status of shareholders, protect medium, minor shareholders'legitimate rights, and strengthen corporation governance.The procedures of this system in U.S. are quite complicated. Plaintiffs and defendants in lawsuit parties'system, the status of corporation and shareholders have been mature since years'practice. As to qualification of Plaintiffs, Contemporaneous Ownership Rule, Continuing wrong theory, requirement of justifiable representation had been formed at that time. In order to encourage shareholders to bring valuable derivative action, no restriction is for shareholders to sue any violation of defendants. In order to guarantee smooth derivative action, corporation is an indispensable lawsuit party. While courts also accumulate rich experience in stimulation and restriction of that action, such as winning parties claims for lawsuit fees, claims for direct compensation under particular circumstances, preposition procedures of derivative action, guaranty of lawsuit fees, liabilities of losing shareholders. Thus American courts shoulder many responsibilities in the commencement, suspension, reconciliation, liabilities of fees.The legislation of this system is far from factual requirement for the protection of shareholders'rights due to non-establishment thereof. No consistence of acknowledgment in legal practice causes to some disorder in jurisdiction. The new version of Company Law in China establishes this system, specifies preposition procedures of plaintiffs, defendants, but specifies unclearly the scope of plaintiffs, the status of corporation and other shareholders, stimulation and restriction mechanism and courts'roles. If not solved, all aforesaid problems shall have bad influence on the execution of derivative action.Upon the statement of origin, development, jurisprudent basis and nature of this system in the U.S., some suggestions with reference to beneficial experience therein has been put forward to make improvement of this system in China so as to make up its defects. And this suggestion mainly covers improvement of lawsuit parties, stimulation and restriction measures and courts'roles etc. Furthermore, the feasibility is also expounded of judicial interpretation, case-leading system, amendment and supplement of certain legal rules.