Building Our Shareholder Derivative Litigation System

In the modern society, the company is the most general , mainprofitable legal person , whose contribution to social economicdevelopment is unparalleled. The foundation of company's existence isthe investment of shareholders, therefore one of the common goals ofcompany law in various courties is how to well protect the rights ofshareholders and encourage the enthusiasm of shareholders' investment.As the transformation from the doctrine of the centre of shareholders'meeting into the doctrine of the centre of board of directors, the power ofboard of directors expands sharply. In this case, it happens occasionallythat the abuse of power by directors , senior executives and othercompany officers, undermines the interests of the company and othershareholders. The shareholder's derivative suits originates from equity inAnglo-American law and preads worldwide, as the development of theideologica trend grows mature. In December, 2004, it was the first time torecognise shareholder's derivative suits by the bill on the revised draft ofcompany law enacted by State Department, which provided that "whendirectors and senior executives violate the law , administrative statute orcorporation by-law while carrying out the post, which causes the damageto the company, shareholders can plea board of supervisors (orsupervisors ) to litigate. If board of supervisors, supervisors, board ofdirectors and executive directors refuse to litigate, shareholders canlitigate directly." The purpose of this text on the basis of the above background,regarding the system structure as the breakthrough point, analyzing andproving its system value highly from jurisprudent point of view. 1Meanwhile, it presents author's own opinion of establishing the valuegoal of this system and choosing the route of it, on which particulardescription done on the important and characteristic content concerningthe concrete system to arrange is based, expecting to have reference valuefor designing the detailed rules and regulations of the concrete system toour country. The full text is divided into three major parts, including theintroduction, text and conclusion altogether. The part of the introductionexplains the writing background, thinking of the writing and researchapproach, and point out the writing meaning of this text further. The textpart is made up of three chapters, explaining the concrete arrangement ofthe establishment of the shareholder's derivative suits system in ourcountry. That are respectively the necessity of the construction of thesystem , the constitution of system value goal and the determination ofthe rouse to choose, and the concrete system arrangement. The part of theconclusion is the retrospect and summary of the content of the article. Chapter one of the article, adopting the analytical method of the realexample and the logic analytical method mainly, demonstrates thenecessity of establishing the shareholder's derivative suits system inlegislation and administration of justice. In realistic aspect, the system ofshareholder's derivative suits is an urgent need of the protection of theright of minority shareholders, and significant for improving theadministration structure of company and promoting the furtherdevelopment of the capital market in our country. In charpter two, the author preliminarily discusses the goal value ofthe establishment of shareholder's derivative suits system and the choiceof route to take, applying analytical method of value, the method ofhistorical investigation and comparative research approach. The authorthinks while carrying on system design, we should suit nationalconditions and make the value goal of it clear, namely balancing equitywith efficiency. This is also a demand for ethics and economicdevelopment. Therefor, on the technological aspect from legislating theauthor has investigated the sources of law and legal system in China, soas to put forward his own proposal to choose the route of theestablishment of the shareholder's derivative suits system – chanellingthe system of shareholder's de...