Shareholder Derivative Lawsuit In China's Judicial System

To address the company directors, executives and large shareholders that the company violated the interests of small shareholders, often-onset cases of type, since 2005, China's Company Law has been clearly defined system of shareholder derivative litigation (in fact, before 2005 has a similar interpretation and Provisions), the law should help to clear more cases before the courts. However, after the author's search and practice of research and found that compared to other often-onset cases of type (such as equity disputes, capital of the dispute), the practice occurred in the number of shareholder derivative litigation cases is very small, this is why? Theory and Practice of circles that China's 2005 "Company Law" Article 152 of the deficiencies in many aspects there are ambiguities or the related systems analysis and policy proposals are also very lively, and in lower-cost China's legislation, judicial interpretation of can also be part of the "first law" (such as the judicial interpretation of the Security Law) of the status quo, our country's shareholder derivative litigation system since its inception in 2005 is almost nothing happened that have been promulgated two judicial interpretations have also not done any substantial a clear and break through (even compared the views of judicial interpretation of the 2003 draft has also appeared in "regressive"). In the current urgent need for improving national legal systems, legislative community and the judiciary often "ahead of legislation" the reality of the context for the effective handling of contradictions among the company's issued ordinary shareholder derivative litigation, why is our country's legislative and judicial so "abnormal"? In other words, why is our country's legislative and divisions have no incentive to promote Chinese shareholder derivative litigation system perfect? This paper tried to proceed from this series of questions to reveal China's current legislative and judicial for the shareholder derivative litigation so "abnormal" phenomenon and the reasons behind the system is running and logic, and on this basis reveals the key to problem-solving, and finally put forward a sound legal system suited to China's reality environment, shareholder derivative litigation system recommendations. Specifically, this article's content and basic structure of major and mainly includes the following components:Introductory section presents the concerns of the author, reveals the current system of shareholder derivative litigation the legislative and the judiciary's "abnormal" phenomenon, to establish the core of this study. And on this basis, further pointed out that in China's legislative status quo-oriented legal system, the explicit rules (ie, relatively clear rules, no more judicial discretion and judges) is to establish the cost and resistance are smaller (less costly legislation) the same time, national legal systems in the current context of much-needed sound, legislators also have an incentive to make the existing legal system through the gaps and inadequacies of the judicial interpretation Moreover, some "legislate" is also often the case in practice. Therefore, our legal system, shareholder derivative litigation system a lot of long-standing lack of clear rules, not because (for example, litigation status, litigation costs, etc.) to establish, but in shareholder derivative litigation system itself is very strong characteristic element of judicial discretion. Therefore, analysis of the current litigation system in China derived from the legislative and judicial problems, and really improve the legal environment in China under the shareholder derivative litigation, derivative litigation system should contain elements of judicial discretion began. Finally in accordance with academic tradition, the theoretical circles at home and abroad on the status of shareholder derivative litigation research brief sortThe first chapter analysis that the judicial discretion in the shareholder derivative litigation. Shareholder derivative litigation created and developed in the common law tradition, many aspects of the system with a very strong element of judicial discretion. Through concrete analysis of other countries (especially the American and England) system of shareholder derivative litigation and the related provisions of the evolution of jurisprudence, namely that the derivative litigation in the cause of action identified, business judgment rule, "exhaustion of internal remedies" principle, the settlement of litigation, security for costs brought about by some of the basic elements of judicial discretion and judicial practice in the courts. Then the author analyzes the provisions of China's current derivative action, pointing out lack of the provisions in China's legal system. After comparative study, the second chapter gives analysis from a theoretical and empirical point of view of shareholder derivative litigation in our discretion the actual operation and the reasons behind this situation. In the beginning of this chapter, our shareholder derivative lawsuit system of judicial discretion is the key to run the status quo with the current performance appraisal as the center of the court personnel management system:In a performance appraisal as the center of the court personnel management system, judges discretion in the justice process of the right to play is likely to be due to awareness of a higher court (including the evidence of awareness, legal awareness and understanding of the relevant discretion standard) is being sent back for retrial or commuted differences, which directly affect the results of performance appraisal of judges, and in the current "two-track system "The performance evaluation model, and thus may affect the court's leadership performance appraisal. Therefore, at this very obvious features of the administration of justice of the organizational structure of the court, the judge's discretion could lead to their own interests and the interests of the leadership of the double damage, such constraints, the judge will make rational choices in judicial practice, try to avoid the judicial discretion of the application (the current judicial system and the environment also judge provide a wide range of choices), but to derivative litigation system, which included a large number of judicial discretion of the sophisticated system, that exactly is fatal. Judges practice, such "conservative" rational choice leading to discretionary limits and standards applicable to long-term is not clearly (lack of breakthroughs in the "trial and error" the opportunities), which further led to the Supreme People's Court and law-maker concerns, and thus They also no motivation to promote the improvement of shareholder derivative litigation. In order to verify the correctness of the above, in the second part of this chapter, the author through the "Peking University Law Information Network" in the "Judicial Cases" database has been collected since 2004 covering over the country, courts at all levels of the shareholder derivative lawsuits. After a careful analysis of all cases found in the existing shareholder derivative litigation, whether it is the total cases, or in each specific case of judicial opinions and judgments, have proved to my analysis, logic of action proposed by the judge.The third chapter puts forward a shareholder derivative suits China's national conditions and improving the litigation system recommendations. In my opinion, comparing the shareholder derivative litigation system in the certainty of the rules (for example, litigation status, litigation, etc.), improving the derivative action in the discretion of the applicable standards is the key to the development of China's derivative action. Given China's current judicial system and judicial environment, I propose he Supreme People's Court to take steps from "Repay-Category Summarization-Judicial Interpretation," the implementation of the steps, and gradually establish our country in the context of shareholder derivative litigation discretion applicable standards. At the same time, change current personnel management system appropriately, establishing respect and encourage judges applying a reasonable judicial discretion.The last part of the article is the conclusion, giving a short summary and the core of the text.