On The Litigant Status Of The Parties In The Subrogation Litigation System

ABSTRACT:Shareholder’s derivative action system is created by countries of Anglo-American law system. When the company and its shareholder’s lawful rights and interests is infringed by company directors, supervisors, managers, major shareholders and other senior management personnel, the system can allow the shareholders use their own name instead of the company name to filed a lawsuit. It is a special judicial relief system. In company law of modern countries, the principle of shareholder equality is the main principle which maintains internal balance of company’s interests. This principle has very important meaning to protect the legitimate rights and interests of small shareholders and to prevent the large shareholders to be a law onto themselves. However, when the company law provides the principle of shareholder equality, it also provides the capital majority rule, so that the principle of equality of shareholders can not play its due role. In practice, it is often seen that the company directors, supervisors, managers and other senior management personnel operate illegally and infringe upon the interests of the company. When it is happened, the company directors are lazy or declined to prosecute, which makes the interests of small shareholders and the company suffer damage. In order to protect the legitimate rights and interests of minority shareholders and the interests of the company, most countries have established the system of shareholder’s derivative action. The article152nd of the revised Company Law of the People’s Republic of China makes the rules on shareholder’s derivative action for the first time. It provided legal basis for the small shareholder to make the shareholder’s derivative action for the safeguard of the interests of the company and the indirect safeguard of their own legitimate rights and interests. But as the result of our lack of practical experience of shareholder’s derivative action system, Company Law of the People’s Republic of China only made principle provision in legislation about shareholder’s derivative action system. There are some shortcomings in legislation and need to be perfect. This article did the research of the position of the parties in Shareholder’s derivative action system from the point of the substantive law and procedural law, through the comparison of overseas legislation which is drawn lessons from by our country, combined with the actual situation in China, analysizing and reasoning, making propose, in order to establish and perfect the theory value of relevant legal system and to guide the practice significance of civil litigation.