On Shareholders' Representative Action System

That company limited liability and personality are independent is company system soul,the company power of operation and the proprietary right separation are the characteristic of the company's harnesses pattern,that capital decides principle most is guarantee that make the make the company highly operate efficiently.But,with the evolution of company system and the company carry out,in order to countervailing mechanism being ineffective gradually,indicating a company in the inside of the company that the shareholders' general meeting,board of directors(manager),board of supervisors three carriage structure found,this sets up that original inside governing there being existing the congenital defect in structure.The director,authority of the board of directors expand gradually,democracy of shareholder become a "myth" being not allowed to reach.If sticking to independent company personality Principle,with problem of the inside people controls is aggravating,the law of cooperation have no way to realize whose inherence the impartial or impartial value.in fact.at the same time since abusing of decided principle,it make the meaning messenger shareholder (important) company become the meaning of the controlling shareholder,the shareholder that control the company's destiny in hand make use of whose controlling power,in order to run after their mexim self-interest,they impose their()on other shareholder,wantonly cheats \ plunders the small and medium shareholdert.In the commercial affairs activity that take company as intermediary agent,the company, shareholder,director,manager,creditor etc.big or small participate in person.The different respective benefit have formed a complicated benefit game never equal to.The law of cooperation provides basic equal legal protection to every benefit with a view to realize reasonable countervails of every benefit,to stop some main bodies from taking sacrificing others benefit as price realizing self improper benefit,to ensure that organization of company develops continuesly\speed;y and healthily. Owing to the independent personality of company,the company enjoy independent legally right of appealing,namely the shareholder has no right to replace a company to institute legal proceedings without the company's empower.In reality since the company inside countervails mechanism is out of order,the company manages make the power of making policy to tier seeking private interests,when the controlling shareholder,director etc protect the company's benefit(),because of a variety of exercises the ding-dang company idler than the small and medium shareholder replace a company to protect company's benefit.Since short of the law basis,the 152nd item of the law of operation has led into shareholder's representative legal action system,this system has already been demonstrated by the outside economy market country's actual judicial practice.Being the mature,effective weighing apparatus,it sooth the sex legal system,it has been becoming a sharp sword governing a crisis in the inside of company,correcting the company behavior dissimilation,protecting a handful of small and medium shareholder's benefit.But block of wood being denying,any system is impossibly consummate,shareholder's representative legal action system has the inevitable defect at the beginning,so as to there is a possibility being placed by emptiness or being abused even.Because of Chinese peculiar national conditions and legislation lagging nature,the new law of cooperation is not strong about the shareholder's represents legal action system regulation operatability,especially,procedure measure is published not yet,thereby for theory with the entity owing item system supporting legislation tier of face to have left sufficient space.The main body of the thesis include four parts together:The first chapter proceed with the history evolution of the shareholder representative legal action system,and has set forth its origin,evolution,comsummate ane legislation skeleton,it make us undersand clesrly about the source and evolvement of this system..And on this condition,discuss the set up cause and real value of our country shareholder representative legal action system.At the same time it also discuss the concept;character and characteristic of this system..The second chapter and the third chapter start with the defect of this system itself,and analyse the cause of building shareholder representative legal action incentive mechanism and restricting mechanism respectively combining with our national condition.And recommend concisely about the comparatively perfect and representative system of outside(American-Japan) about the various measure of stimulating legal action(reduces the qualification of plaintiff,draw according to charge for un-property law case,legal costs compensate system,proportion individual compensation request power system,restrict the compensate obligation of plaintiff when lose a lawsuit),about the various measure of restriting legal action(American-Japan-Taiwan)(the suitable plaintiff ane defendant,object range restrict,prepose procedure, security for legal costs).Ane with this understaning,using the comparative method,combing the real condinl of our country,to table the wielding proposal about the stimulating and restricting mechanism of he shareholder representative legal action system..On one hand,we should ensure that the shareholder is able to lodge a complaint expediently.On the other hand,we balance shareholder's risk and avails by designing the entity system,to ensure that the shareholder representative legal action system brings due effect into play.The fourth chapter consider that the law of cooperation gathers the character of a constituent act,behavior law and procedure law,as a relieving way of public rights to personal right,the effect of shareholder representative legal action system confused by the fact that the judicial authority and personal appealing combining eachother to stop arguing. Combing the professional practice of the author,this part turn to the procedure problem of lawsuit.Administer.From the dominating of lawsuit brief of a case,other shareholder's legal action position,company's legal action position,onus,beat a retreat,reconciled and mediating and so on, to discuss the possible problem that this system faces in actual judicial practice,to make theory and practice combine nearly in order to lood after a revolent according with our national condition and fitting to nowaday law frame of the procedure of the shareholder representative legal action system of our country.