On Shareholder Derivative Litigation Parties

The positive meaning of shareholder's derivative suit is fixed by many scholars at the work in recent years , and it is thought that our country should leads this system basing on the abroad laws. But leading any one kind of law all must operate to his theory foundation and solid affair , then builds the corresponding concrete system combining our reality. With public power solving in the civil action of private interests dispute , party's system is discussed as one of foundation stones in procedural law, and is also indispensable for any lawsuit. It is all without exception to show the meaning of solving the contradictory conflicting with the main body position of party, from the lawsuit program to the subjective scope of judgment.This text from the procedural law angle,exerts historic method,comparative method, breaks through the limitations of currently procedural law of our country , and establishes the completely new procedural law relation of joined forces , to realize each side party positionThis text divides five parts altogether:The first part has been discussed the basic theory of shareholder's derivative suit. It is about the concept,features,discriminate between it and other systems, its history, and the beneparty theory. In the research course, the author has put forward such viewpoint that shareholder's derivative suit rises from artificial person attribute and tool value attribute owing to the corporation. Why middle and small shareholder indicts is that their shareholder's power have suffered indirectly. Therefore this lawsuit settlement still is " between person and person's dispute " .The beneparty theory is the foundation stone of this text . The beneparty theory constantly develops and makes perfect in the shock of various new type disputes. The author puts forward that the requirement of beneparty containesthe substance right and the program regulation . So the requirement of beneparty is treated more suitably as the problem between substantive law and the procedure law . At the same time , " intrinsic interest " theory is expound to the right of beneparty will be more accurate and distinctThe second part has been discussed the petitioner of shareholder's derivative suit. The scope of the petitioner should be placed restrictions on shareholders of the corporation . The petitioner should have substance right . That is to say, the foundation of the petitioner as the beneparty is shareholding. It is not the simple right,but the combination of many kinds of rights that are shareholder enjoys and duty . It is the new property right beside jus in rem and aes suum . In addition , the petitioner still should have program regulation that is the program restriction of different level as the benepartyThe third part has been discussed the defendant of the shareholder's derivative suit. By way of the comparison of the derivate lawsuit object scope to each country shareholder , the author approves of wide in range defendant's scope that takes the American legislation as the foundation . Thus it can prevent and salvage corporation mechanism component personnel monopolize power and seek private gain , also can check and disappear the infringement from other person. The foundation of the defendant as beneparty depends on that he breaks the law or does unsuitable action and that directly does harm to to the corporation . The relationship between the petitioner and the defendant is so tight that if the defendant is an un - beneparty, the petitioner will be dismissed of the action for he hasn't the grounds of the action.The forth party has been discussed the third person of shareholder's derivative suit. It has been disputed bittly that what the corporation is of the shareholder's derivative suit. In view of the conflict and contradiction in the dependent claimed third person's system of the procedural law in effect of our country , the author has led " quasi-independent third party's theory " . Analysing the foundation and the way he joins the action of the independent third person , to fix a positi...