The Program Of Shareholder Derivative Action

Shareholder derivative action system is a new type of action system in China.It consists of entity criterion and procedural regulation. Chinese "Company Law" of the derivative action system has made provisions in principle. As well as,it provides a foundation to establish the procedural regulation. In order to regulate comprehensively the system of shareholder derivative action , not only entity criterion need to be refined and improved, but also procedural regulation . Lost the protection of the procedural regulation ,the rights of shareholder ,that provided by the substantive law, will be difficult to achieve.Shareholder derivative action system in desperate need of the protection of procedural law.It is deserved to be approved that our "Company Law" is amended to found the shareholder derivation action system, however at the same time there are some unreasonable and incompletely rational provisions. In this paper, under the existing "Company Law" the relevant provisions and " Civil Procedural Law " the basic principles, combined with Chinese realities, from abroad, mainly the United States and Japan, two countries with a representative of the shareholder derivative litigation system , analysis of Chinese law on shareholder derivative action system, made from the substantive and procedural law aspects of refining, and improve system-related procedures. Look forward to the Civil Procedure Law and other relevant laws, the establishment of an appropriate derivative action shareholder action system status, to protect the rights of the parties to the litigation and the substantive rights.The article, from the substantive and procedural law point of view, researches shareholder derivative action and proceedings for cross-disciplinary, multi-disciplinary research. Not only improve the civil legal system, but also the contents of the substantive law involved. In this paper,it based on legal provisions related entities, combined with Chinese civil and corporate practice, analyze various aspects of research and to make appropriate legislative proposals. Otherwise,owing to the defect of legal system,it will be hard for system installation of shareholder derivative to bring into play.The article is divided into six parts. The first part introduces the concept of shareholder derivative system, characteristics, features and historical development, as well as the system established in our development process and the status quo.In the second part, the innate character of the derivative action determine that a shareholder should fulfill preceding procedure that he or she must raise a claim to a company to charge invaders before bringing a derivative action. Plaintiff study is the logical outset of the derivative action proceedings. Therefore, the third part of the article prosecute the shareholders restrictive eligibility requirements,from the plaintiff shareholders holding requirement and the conditions defining. And in view of our national condition, encouraging legal action should be taken as the legislation emphasis of our country's shareholder derivation action system. In the fourth part,the author put forward a shareholder derivative action of the special rules apply.In the fifth part, in order to achieve its original goals,the bringing forth of the derivative action shouldbe encouraged but the abuse of it should be prevented.The main contents of part VI are: a clear front of the shareholder derivative action procedure, improving the qualification requirements of the plaintiff, do special procedures, the establishment of incentive mechanisms in line with national conditions and restraint mechanisms. In order to achieve a balance between encourage litigation and prevent to abuse rights,we ought to found the incentive and limited measure. In short, the combination of entity criterion and procedural regulation is the effective way ,thah protect and achieve the shareholder's lawsuit rights .In research methods, the main use of this article: (1) the comparison of methods, including between countries of different legal systems related to the comparison system and our system of shareholder derivative action history. (2) interdisciplinary research, through substantive and procedural law with the method of combining the analysis and research. (3) empirical approach, in theory and practice of the principle, to carry out further study. Theory to guide practice, amendments to the system of practice. (4) the logic of analysis.Given the limited capacity, the article inevitably flawed and inappropriate. The author would like your views.