Shareholder Derivative Litigation. Legal Issues

The main theme of this thesis is as follows: China should constitutes practicable Shareholders Derivative Suit System on the basis of the principle, that is, fully balancing the equity and efficiency in order to further perfect the legal system for company. The investigation meaning of this thesis is: to provide theoretic support for Shareholders Derivative Suit on the present condition of China whose legal regulation is not perfect and its judicature practice lacks guidance.This thesis mainly used the methods of comparable investigation and comprehensive analyze to make a preliminary research:Shareholders Derivative Suit refers to such a suit: when a company's legitimate rights and interests are infringed upon by other people, especially the people having control powers, such as shareholders, parent company, directors and management personnel, and, while the company is slack to exercise its litigation rights, the shareholder being up to the standard can institute a proceeding to the infringer for the sake of company's rights and interests by his/her own name to holder the infringer subject to legal liabilities. As a major means of strengthening the operation and supervision of company, Shareholders Derivative Suit has already been confirmed by majorities of states in business legislation.The purpose of establishing Shareholders Derivative Suit system is to settle two interests conflicts which are difficult to handled with in company's inner mechanism: the conflict between shareholders and manager, and, the conflict between majority shareholders and minority shareholders, thus, to promote the perfection of legal person management structure, settle the disputes relating to the infringing upon company's rights and interests, to protect the rights and interests of company and shareholders.The jurisprudential bases of shareholder's litigation rights are mainly touched upon two aspects: procedural law and substantive law. At present, relate to the jurisprudential bases of the procedure of shareholder's litigation rights, there are mainly two theories: lawsuit undertake theory and generalized litigant theory. The latter precisely holds the basis and kernel in the process of litigation rights transfer of Shareholders Derivative Suit-the right and interest relationship, and, reasonably explain the question of the source of the properness of shareholder's litigation rights. Of all the theories in different countries relating to the search of the jurisprudential bases of shareholder's litigation rights from the aspect of the claim basis of substantive law, the typical views are: the theory of creditor's right of subrogation, the theory of trust beneficial right and the shareholder theory. The author is liable to the shareholder theory.As a special type of suit, the design of the procedure of Shareholders Derivative Suit is different from the normal direct suit. Different Corporation Laws in different countries all have made corresponding arrangements on procedure, for example, the systems for the plaintiff shareholder: credentials inspecting system, lawsuit fee guaranty system, pre-suit requestor etc.Since in the present "Corporation Law", the responsibility system of director and senior staff is not perfect, and, the inner supervising mechanism exists in name only, so, it almost becomes a common understanding that it is necessary to introduce and constitute Shareholders Derivative Suit system. Using the advanced legislation cases of different countries for reference, the author put forward some concrete suggestions for the real operation of Shareholders Derivative Suit system:The problem relating the qualification of plaintiff shareholder: I suggest to determine the nature of the right of raising Shareholders Derivative Suit as minority shareholder's rights. Meanwhile, proper demands should be made for the quantity and time of the shares of minority shareholder. For example, the market value of the company's shares holding in the hands of plaintiff shareholder should no less than 500,000 yuan, or, th...