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Improvement Of Shareholder Derivative Action In China

Posted on:2012-11-15Degree:MasterType:Thesis
Country:ChinaCandidate:Q Y CaoFull Text:PDF
GTID:2216330338469353Subject:Law
Abstract/Summary:PDF Full Text Request
As a special system to protect the rights of minority shareholders, Shareholder Derivative Action produced in Britain, and developed in America. Since this system had formated, it is not only favored by the Anglo-American law system countries, but also followed by the continental law countries. We have introduced the system of shareholder derivative in 2005, when the Company Law was amended in China.This system greatly enriched the judicial relief channels when the medium and small shareholders'rights were infringed by in the big shareholders. But since the new Company Law has come into force, the shareholder derivative actions system is mainly exists as a system. There are merely cases in practice. Legislation flaws and supporting system shortage are the main reason which caused implementation difficulties. First of all, the Company Law only has principle regulations, its content is careless, not detailed enough, especially the vacancy of some substantive and procedural regulations. Secondly, the Civil Procedure Law and other relevant laws don't establish cohesion with derivative action, and they are lack of matching provisions. So we will encounter some difficulties in judicial inevitably.This article is emphatically from the angle of protecting the rights of small and medium shareholders, and concludes the problems of our country's shareholder derivative action which needed to be solved in the judicial process on the base of our country's legislative situation and judicial practice. The article is going to give some advice of perfecting specific programming at the same time. The full text has four chapters.The first chapter has overview of shareholder derivative action, gives a brief introduction of shareholder derivative action. This chapter expounds the concept and history of shareholder derivative action, and summaries the characteristics of shareholder derivative action from its development and evolvement process.Chapter two mainly analysis the necessity and urgency of perfecting shareholder derivative action system from the angle of protecting the minority shareholder's interests. The chapter introduces the legislation present situation of our shareholder derivative action system. I summary the legislative defects existing in the shareholder derivative litigation system which is to protect minority shareholders'rights, and sum up the problems existing in the judicial practice through the analysis of two representative judicial practice cases.Chapter three puts forward the guiding thought of perfecting our shareholders derivative litigation system. Form three aspects:combing shareholders directly litigation and shareholder derivative action with each other, insisting the mode of company autonomy and judicial intervention governance, and insisting the principle of encouraging legitimate litigation and preventing speculative binge litigant litigation. And finally analysis the principles of perfecting derivative action which should be followed.After analysing the main resistance factors in the judicial practice derivative action, chapter four puts forward the suggestions of perfecting shareholder derivative action from the angle of the preceding procedure, pleasant to case the plaintiff, proper lattice defendants, regional jurisdiction, burden level jurisdiction, litigation cost calculation and litigation cost compensation system, in the aim to better safeguard the rights and interests of small and medium shareholders.
Keywords/Search Tags:shareholder derivative action, medium and small shareholders, system consummation
PDF Full Text Request
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