On Shareholder's Representative Action And The Consummation Of Legislation

The promulgation and implementation of the new Company Law has been to promote the healthy development of the modern enterprise. The company is improving, but the company's ownership and management rights of the company separated. Management is being concentrated in the hands of the board and company management If the company's directors, managers or controller of the company who harm the interests of the company, the company is unable to obtain judicial relief. Protection of minority interests will not be the case more and more.The implementation of shareholder derivative action has already protected the rights of shareholders, maintain the company's repair mechanism and improve the corporate governance system. Encourage and guide the minority shareholder derivative action filed is not an expedient measure, but to encourage shareholders to actively participate in corporate governance, in order to guard against and defuse the company's business risk, which is to enhance the competitiveness of the company's long-term strategy.New "Company Law" in the shareholder lawsuit system marks the launch of China to achieve modernization and international integration companies. Though our construction of the system has achieved some success, but there are still out of line with the actual situation the establishment of the Chinese system has experienced 10 years of exploration, in this period, many scholars repeatedly study, explore and verify, but we are disappointed that the implementation of the results did not meet our expectations. We took many years to research, demonstration, why the implementation of the result is not satisfactory? The reason is our law is still very general, not feasible. Market economic system is common. Experience of developed countries is important to us. In this article, by learning the experiences of other countries'legislative,judicial experiences, on how to build a "company's interests first, modest judicial intervention" in the litigation. Balance shareholders, directors, the litigation interests of the company structure.Text is divided into introduction, body and conclusion. Body consists of four chapters.The first chapter is an overview of shareholder litigation, explained the meaning of the Shareholder litigation and discussed the difference between the two systems. The second chapter reflects shareholder litigation law applicable in China. January 1,2006 came into effect on "Company Law" in the shareholder lawsuit system marked the company's modernization and international integration. However, the effect on the implementation of this system is not satisfactory. I analyze the reasons are:the parties do not understand the system, and the lack of appeal of the legal system.The third chapter analyzes the defects in our national legal system, discusses the scope of the defendant shareholder litigation, the scope of plaintiff shareholders, the company's legal status, the court's jurisdiction, the shareholder lawsuit made in the counterclaim, the plaintiffs right and responsibility to shareholders, shareholder litigation on behalf of the judicial review mechanism and the mediation program.Chapter IV analyzes how to improve the legal system. The current system lacks the plaintiff and the defendant dialogue, exchange mechanism. Establish the plaintiffs compensation system to encourage shareholder litigation. At the same time, we choose to enhance the defendant's defense capabilities, by the way, in order to protect the defendant's power to enable the accused to fully express ideas and opinions, and balance the interests of all parties.This approach adopted:(1) Analysis and comparison of methods. By studying foreign shareholder lawsuit system, consider amending the existing legal system.(2) Case studies. Typical cases in Beijing were analyzed to help us better understand the shareholder lawsuit in the judicial practice problems.(3) Field research methods. Collect the court decisions, and discard the dross and select the essential of its office in the processing and handling.(4) Inductive method. Analysis of typical cases, summarize the case law applicable to the proposed common issues.This article Innovation:China's new "Company Law" on China and the world had a great response on foreign legislative, judicial experience, introduced a complete set of the recommendations of our legal system.