Study On The Representative Of The Shareholder's Lawsuit System In China

The establishment of the legal system is essential to meet the needs of the development of social life. In the real economic life, the company's overall equity is held by shareholders holding different amount of equity. Under the restriction of the traditional rule——capital controlled by the majority, major shareholders have absolute advantages in the company's governance process, which also leads to the occurrence that major shareholders using their capital advantage to encroach the interests of other minority shareholders and the company. Shareholder representative action system stems from the United Kingdom and develops comprehensively in the United States. Provisions on this system can be found in commercial law or company law of France, Canada, Japan, Taiwan and many other countries and areas. Although there has long been relevant legislation about shareholder representative action in the United Kingdom, the United States, Japan and other countries, it was stuck in the theoretical phase for a long time in China where there was only the protection of the direct right of appeal of shareholders against the direct infringement of shareholders' interests. Currently, the system of shareholder representative action has become the important content of modern company law, the necessary means to remedy the defects of the company governance structure and plays a crucial role in protecting the interests of minority shareholders. Therefore, this system is established in company law of many countries and areas. In China, through step-by-step exploration and research, the system of shareholder representative action was formally established in the new company law in 2005, which provides the plaintiff shareholder's qualifications, the defendant, the applicable dispute form, the pre-program of litigation and so on. However, the provisions on the system of shareholder representative action in our new company law are principled and difficult to operate. There are not further provisions about some aspects of procedural law and substantive law, such as the company's legal status, the system of compensation for the costs of the proceedings and the plaintiff shareholders' right of disposition. There are also some deficient provisions lacking of operability. Therefore, it is necessary to make a further research on relevant issues to improve the system of shareholder representative action.The whole article is divided into three parts:the first part is a brief introduction of the system of shareholder representative action; the second and the third parts are the key parts in which a comparative analysis is made between our current shareholder representative action and the legislations of other countries from the perspective of procedural law and substantive law, the analysis is done about pre-programs, client identification, litigation proceedings, fees, mediation, compensation, withdrawing, implementation and other practical ones, and legislative proposals are provided with the purpose of better serving the legitimate interests of minority shareholders. In the present related journal articles, on the charging system of shareholder representative action, most comments lean to learn the relevant provisions of Japan's shareholder representative action, regarding it as non-property case with fixed charges in order to facilitate the vulnerable minority shareholders to appeal. For the company's litigation status, in accordance with the traditional legal thinking, most researchers think that companies should be taken as the third party with no independent claims. Of course, there are great controversies on this view, but the relevant ongoing discussion provides a strong theoretical basis for the appearance of judicial interpretation. This article takes practical actions as a starting point, through theoretical research of the shareholder representative action system and on the basis of the extension of theories, aiming to provide some useful guidance on legislation, judicial interpretation and legal application.