On Shareholder Derivative Action Research

Company as an important organizational form of the modern economy, one in the economy play a very important role. With economic development, especially in the modern market economy, the increasing size of the company, the form of increasingly complex, to protect the company's normal and efficient operation, the company's separation of ownership and management is inevitable, and even Hyundai the basic model. Because the large number of shareholders can not be hands-on, only the right to grant the company the management board of directors and other senior management personnel, but as the Board of Directors and other management personnel, the increasing expansion of operating authority, against the interests of the company being the case management staff have occurred, If we do not strengthen the management shareholders of the supervision and checks and balances, the protection of the interests of shareholders will inevitably become a mere formality. In particular, as the company system by the "shareholder-centrism" to "Board centralism" of the transformation, as the interests of the company shareholders the ultimate owner of the increasingly weakening control of the company, and as the company's board of directors and other managers in the company management of the company's decision-making is increasingly living in the center of its operating authority swelling. Therefore, in order to strengthen the status of shareholders to protect shareholders, especially the interests of the company's minority shareholders to prevent the abuse of the rights of company, its legal system countries one after another in the creation of a variety of shareholder oversight and correction mechanism for company manager behavior shareholder derivative action, which has become a particularly important one, by giving shareholders the right to appeal, so that in other ways difficult to protect the legitimate interests of the company's case, according to the law through legal channels to correct the behavior of operators, restore the rights have been violated, the judicial protection of shareholder interests as a barrier. Follow the world trend of China's legislature, and also to meet the needs of economic development, the revised Companies Act 2005 also created the system, but six or seven years later, derivative litigation practice in the use of our judicial process has occurred a number of problems, people know little of derivative litigation, even rarely used shareholder derivative action that legal weapons to safeguard their legitimate rights and interests. Supreme Court on the judicial interpretation of derivative action has yet to issue even more, resulting in shareholder derivative action to protect their use rights or even the trial court on the derivative litigation are difficult and take a certain degree, it is very outdated phenomenon.This comprehensive study of Chinese and foreign comparative analysis of theories, especially the United Kingdom, the United States and Germany, three countries derivative action principle and system building. Grasp in understanding the basic nature of derivative action, derivative action against the status quo in our country's system of reflection, and the current litigation system in China were derived from analysis, the derivative of the current litigation system in the operational people and not the judicial process The problem, according to our current mode of social and economic development and make derivative action under the specific operating mode of the plain view so that derivative litigation in our judicial system better use.This article from the preface, body, conclusion formed the body of the basic concepts of derivative litigation, the nature and the differences between the related concepts;foreign legal system derivative litigation; derivative action of the Chinese model of three parts. Among them, the body of the third part is the subject of this section.In the preface to the background of this general introduction made.The first part examines the concept of derivative litigation and foreign theories on the derivative litigation system analysis and evaluation of Chinese and foreign scholars introduced the concept of derivative litigation awareness and perspective for the further analysis of the derivative action to provide the theoretical knowledge base. Shareholder derivative action is a right of appeal is the application of equity method of correcting the company's core institutional arrangements sub-purpose product. In the company's development process, because the company is an independent personality, with its independence. So when the company's manager of breach of duty to harm the interests of the company and shareholders, of course, who is the company's litigation, corporate law does not allow shareholders to replace the litigation, which is to safeguard the independence of the company free to intervene in the court house inappropriate management principles to consider. However, when the manager actually controls the company has violated its obligations to harm interests of the Company, the shareholders, especially minority shareholders can protect their legitimate rights and interests of both equity interests of the law in order to produce a derivative action.The second part of the body of a comparative analysis of methods used to understand the system of foreign derivative action on the specific design. Selected in this particular development of the three derivative action more perfect state. Common law of England and the United States, Britain derivative litigation originating country, the development of derivative action the UK has been one hundred years of history. Derivative action the United States is the world's use of the derivative action of the most vividly in the country, can be said that derivative litigation originated in the United Kingdom, the development in the United States. Civil law countries, the paper selected in Germany, Germany in 2005, also amended the Act to improve the legal system related to derivative litigation, which is quite similar and our country, the need for comparative analysis.Body of the third part is about the derivative action in China's specific mode of operation. From the derivative action of the plaintiff, the defendant, the court reviewed the status of the company in litigation, litigation costs, the outcome of litigation on issues such as ownership of a specific analysis.Conclusion is a summary and summary of this article.