On The Subject Qualification Of The Derivative Suit In China

Adding the derivative suit to the law is a breakthrough in the history of the revision of the corporation law in China. The derivative suit is involved with small shareholders and controlling shareholders'relationship,illegal infringers and the corporation's relationship,directors and victims'relationship and so on. In the final analysis, the derivative suit deals with relationships among people and resolve disputes among people. In addition, the institution of the parties is a very important concept in the science of law. Therefore, the essence of research on the derivative suit is a thorough analysis of its subject qualification. The derivative suit's subject qualification includes three aspects: the plaintiff qualification,the defendants qualification and the corporation's legal status. Compared with other countries or regions, the derivative suit in China has its own unique characteristics. First, the plaintiff qualification of the derivative suit in China is concerned with its coverage and its restrictions two parts. Treating of the plaintiff's coverage, elaborate the legal regulation in other countries first, then analyse the present situation of the plaintiff coverage legislation about the derivative suit in our country; Treating of the plaintiff restrictions, first narrate the situation of limited liability company in China, then narrate the situation of joint-stock limited company in China. Secondly, defendants qualification of the derivative suit in China is concerned with its coverage and behaviours of its legal liability. Treating of defendants'coverage, on the premise of crystallizing that Chinese corporation law adopts extensive legislative model, it can be devided into insiders in the company and personnel outside the company to discuss ;Treating of the defendants'behaviours of its legal liability, first collate legal provisions in other countries,then explore the situation about this in China. Finally, how to decide legal status of the corporation is an inevitable problem. The corporation's lawsuit status is different along with the change of a standard. The standard is whether the violators are the legal representatives or not. Certainly, the study on the derivative suit'subject qualification in China should improve with the development of judiciary practice.