The Exertion Impediment And Legal Relief Of Shareholder Derivative Action

Our company law just prescribed the shareholder direct action incompletelly before its modifying. The 18th meeting of Tenth National People's Congress Standing Committee modified the"company law"greatly on December 17, 2005. In addition to further perfecting the shareholder direct action, but also firstly official constracted the shareholder derivative action, which can be a highlight of this revision.The shareholder derivative action has important significance. When the legitimate rights and interests are infringed, and the company is unable to initiate lawsuits, authorized by law,shareholders can take the subrogate right of action.,in order to safeguard the interests of the company and its shareholders ,and investigate the infringers'responsibility. The shareholder derivative action has developed more than one hundred years abroad,and legal regulations become more and more perfected,and plays a positive role in safeguarding the company's and small shareholders'rights and interests. Our "Company Law" introduce the system,can afford a complete system of rights protection for shareholders. Study on this topic is good for perfecting our relative law.But,the article 152 of our "Company Law" just construct the framework of the system,still too principled to operating in practice.When shareholders exercise their rights ,there will be a lot of obstacles . These obstacles include:firstly,the regulation about shareholder derivative action is too simplistic,and "Civil Procedure Law"is also not involved in,so administration of justice will inevitably face many troubles.Imperfect legislation is the reason which will prevent shareholders exercising the right to take derivative action..Secondly,from the aspect of shareholders, impacted by the traditional legal culture of tired of disgusting suits,and the prevalence of "free-rider" psychological,after comparing the cost of the different ways to protect their own interests,shareholders of our country maybe abandon the shareholders derivative action and seek other means of relief. Finally, the targets of shareholder derivative action generally are big companies, which are often associated with executive powers.In order to protect the company's reputation, administrative power maybe interfere with the justice,and resulted in a miscarriage of justice.The shareholder derivative action of the United States, Britain, Germany, Japan and other countries don't only have common principle,but alao have special system separately. In practice, their shareholder derivative action achieve good social effects.These countries'legislation provide us with a useful reference to further perfect our shareholder derivative action.If we want shareholder derivative action to play its role fully,the legislation and justice must be necessary improved.In one hand,by studying representative legislations, shareholder derivative action should be perfected from substantive aspect and procedural aspect. We should seriously consider and choose different legislations'principle and specific content, but also emphasize the native environment of our country's companies,in order to enable shareholder derivative action to match with China's market economy status and future development,and avoid that legal system is disjointed with status.In the other hand,government and company should be seperate with each other thoroughly,to ensure that the courts can make independence and fair adjudgements.Meanwhile,the court should play a positive role in investigation of evidence and coordinating shareholders'cooperation,based on its neutral standpoint,to balance the parties'capacity of the proceedings.