Research On Shareholder Derivative Litigation Related To Legal Issues

In order to allow small shareholders to safeguard the legal remedy of self-interest, China Companies Act 2005, drawing on common law countries, mature experience, contact China's specific conditions, the introduction of shareholder derivative litigation. This is to safeguard the legitimate rights and interests of small shareholders, standardize the company's executives conduct of operations, improve the internal governance institutions will have a positive impact. But by this paper derived the shareholders of a typical cases of analysis, we found that only by our company of a simple first 152 laws do not seem to effectively solve the practice of related problems. The author in this article to a typical case of shareholder derivative litigation cases as the basis, the major shareholder derivative litigation against the plaintiff in the shareholders eligible to qualify, pre-procedure, limitation outcome of proceedings, described the four aspects of attribution, pointing out that China's legislation in these four shortcomings with regard to China's company law on how to improve the relevant provisions of these four aspects of the comprehensive proposal to provide some immature. In addition to the introduction and conclusion, this article is divided into six sections.The first part of the court brief and basic problems. Describes the basics of the case and in this case the original defendant between legal dispute based on a four-related legal issues explored in focus.The second part of the plaintiff qualification derivative action shareholders. First, why the analysis of national eligibility restrictions on the plaintiff the legal basis; followed by a brief introduction about our situation in the field of legislation and pointed out deficiencies; and finally on the relevant issues involved in this case provide concrete solutions to the article that the case The plaintiff shareholders, although the flight of investor behavior is a serious illegal acts, but in the current legislative framework, does not result in the loss of eligibility of shareholders. Of its shareholders as the company's legal and company law on the plaintiff to satisfy our eligibility qualifications, according to the law right to bring shareholder derivative litigation.The third part of the shareholder derivative litigation front process. First, the analysis of pre-program What is the value of institutional arrangements. Second, the brief introduction of legislation in this part of China's status quo and pointing out the shortcomings. The third case involves the issues related to specific solutions. According to the article in the case the plaintiff shareholders failed to fulfill the law of the pre-procedure, but the company has been based on the actual control of the person infringing the fact that the corresponding pre-discharge procedures have been little practical significance, in order to not unduly compressed medium and small shareholders the right to claim space, I believe that the shareholders should be allowed the plaintiff to request exemption from pre-program an invalid grounds.The fourth part of the shareholder derivative action suit. At present, China mainly on the academic starting points on the Limitation of the existence of two different viewpoints of a brief analysis on this basis, I believe that Chinese companies are based on current information disclosure mechanism not perfect, medium and small shareholders, it is difficult to keep abreast of the infringer's infringement occurred a specific time, in order to avoid the shareholder derivative litigation defeat the purpose of the system is set, the limitation should be the starting-point as the shareholders knew or should have known the date the violation occurred.Part V of the outcome of the proceedings shareholder derivative litigation attribution. According to the article in favor of the plaintiff's case, the plaintiff in order to enhance shareholder derivative litigation brought enthusiasm, the company is necessary during the proceedings to pay its reasonable expenses to be compensated; in the plaintiff loses the case, we should distinguish between sub-case, if the plaintiff shareholder litigation was motivated by good faith should be relieved of liability for the company and vice versa should bear the corresponding liability; in the case of reconciliation withdraw an accusation, based on the particularity of shareholder derivative litigation, it is necessary to give the court a mandatory review of the reconciliation program Right. Part VI improvement of shareholder derivative litigation system. According to the article based on case studies of this article, the author found that China's Company Law in the shareholder derivative litigation system there are many inadequacies. I believe that qualification by the plaintiff, the Chinese Company Law should be added to "continuing shareholding principles" and "at that time ownership principle" and in the subjective aspects of the plaintiff to restrict eligibility to the plaintiff shareholders eligible to be more "representative" and "the legitimacy of "; on the pre-procedure, our company law should be improved in three areas, a clear to others the plaintiff shareholders brought against the interests of the company object of litigation, two of" Invalid request "into the pre-program type of immunity among the three given within the company filed suit to block the right; the statute of limitations, the Chinese Company Law should learn from the experience of other countries mature, shareholder derivative lawsuit is set to three-year statute of limitations, self-Wei Ren act against the interests of the company date of the occurrence, if The act has not been discovered, the shareholders of the tort should be five years from the date of completion of shareholder derivative lawsuits filed to protect the company's normal operating order; attribution in the outcome of the proceedings, our company law should be made clear in the plaintiff wins the case, the company lost a case , the defendant, the plaintiff should bear the legal consequences of each and allows the existence of the reconciliation process to give the court power to review the reconciliation program mandatory.