Study On The Derivative Action System Of Investment Fund Holder

Investment funds generated in the mid-19th century in England, developed in the United States. In the early 1990s, against the background of the investment fund's development around the world , investment funds also have emerged in China, it have rapid development with China's globalization, and gradually become an important part of China's capital market. However, the investment fund have a relatively weak integration organization, the fund holders's rights were lack of effective relief. Then, how to protect their right effectively has become the important issues covered of law.Shareholder derivative action system was originally a system of corporation law, aimed at constraints against the corporation's internal decision-making officers abuse their power and protect medium-sized shareholder's rights. The system has played an irreplaceable role in the protection of the rights of small shareholders, known as "the invention of common law countries", China was also established a shareholder derivative lawsuit system in the corporation Act 2005 for the first time.This article will attempt to import the shareholder derivative action system into the Investment Fund, and establish the investment funds derivative action, found a new way in protecting the legitimate rights of investors. The United States has established the derivative action system in the type of corporate investment fund as early as the 1940s, they are now trying to establish the derivative action system in the type of Contractual investment fund. U.S. laws of the State of Delaware has established a derivative action system in the Business Trust in 1998 , the business trust is a unincorporated association, based on the trust structure, aims in the investment profit. Contractual investment fund business is a type of the business trust, most of China's investment fund is the type of contractual investment funds. This paper will transplant the Delaware's legislative precedent into China's investment fund, while reference advanced legislative experience from the corporation shareholder derivative action system, construct investment fund holders derivative action system initially.. This article will research the derivative action system of investment funds holder by the following five parts.The first part is the overview of the investment fund and the shareholder derivative action system . This part clearance relationship of the investment funds and the basic theory of corporation shareholder derivative action system, found a theoretical basis in transplanting the shareholder derivative actions system into the investment funds.The second part discussed the necessity and feasibility of the establishing derivative action systems in the investment funds. This part introduced a legislative position of the Delaware state , while interpretated the feasibility of establishing the derivative action system in the investment funds.The third part is the litigants in the proceedings. In this part,on the basis of sdudying the Delaware state's legislature precedent, while referenced the provisions about the litigants in the corporation shareholder derivative action system around the world, discussed some legal problem concerns the plaintiffs, the defendant, other fund holders and the fund itself in the proceedings, and accordingly put forward legislative proposals.The fourth part is about the proceeding problems of the investment fund holders derivative action. In this part,I discussed the circumstances under which lawsuits could be filed derivative, the request pre-litigation procedure, jurisdiction and the compensation of the cost of litigation proceedings, and accordingly put forward legislative proposals.The fifth part is about the prevention of the derivative action rights abuse. This part referenced the legislative precedent of Delaware state and the legislative precedent in shareholders derivative action around the world, recommended any means, such as the litigation cost guarantee, the independent committee and the court to supervision the proceeding, to prevent the rights abusing.In the last part, I make a conclusion about above all.