Shareholders Derivative Action Research

In the modern economic society, the corporation has become the dominating organizing form of the enterprise. The capital, human resource and other resources are combined organically to a corporation which runs regularly according to law, so it is possible for us to make use of these resources. The shareholders invest into a corporation in order to gain the maximum profits by its well-running. The shareholders' limited responsibility and the independent legal personality of the corporation are two merits of the corporation system and the reason why the corporation can combine the scattered social resources and make use of them. Generally speaking, the shareholder is responsible to the corporation within the limit of his or her investment. The corporation is legally independent from its shareholders. And in the corporation several organs deal with the special affairs. When the rights or benefits of the corporation are violated and the shareholders suffer indirectly, it is the corporation's right to lodge a complaint. However, the economic life and the business operation of the corporation are so complicated, that after the power center diverting from the shareholder meeting to the directors or managers, the shareholders, especially the minority shareholders, can not expect the protection from the complaint lodged by the corporation. The controlling shareholders, directors or managers who hold the controlling power sometimes make their own benefits by violating the benefit of the corporation, and refuse to punish the violator. In such a case, according to the law, in order to protect the corporation interest, the shareholders have to refer to the court in their own names. So the shareholder derivative litigation is on the stage. In the most countries, the corporation law provides the articles of the shareholder derivative litigation. Company Law of PRC 2005, which was modified by the 18^th meeting of the standing Committee of the 10^th National People's Congress on October 27th 2005, firstly legislated the shareholder derivative litigation. This is a great creation of China law for the minority shareholder protection. But we must admit that the protection from the updated Company Law 2005 is so far from the perfection that a lot of job is in need.In this thesis, the author would like to analyze and explain some important points on the shareholder derivative litigation by the method of comparative study, demonstrate the shareholder derivative litigation in China practice, and put forward some advises on how to improve it.This thesis includes four chapters. The first chapter introduces the concept and the characteristics of shareholder derivative litigation, compares it with the shareholder direct litigation, and introduces its history. The second chapter compares the different legislation of the shareholder derivative litigation in several developed countries or districts, including the legislation on the parties of the shareholder derivative litigation, the inspiring and restricting system, and jurisdiction. So the author might find the stylebook for the China shareholder derivative litigation. The third chapter is the study of the primary design of China shareholder derivative litigation, including the background and significance of the law drafting. The last chapter puts forward several advices on how to improve the China shareholder derivative litigation legislation, including the law on the parties to the shareholder derivative litigation, the inspiring and restricting system, and the jurisdiction.