Study On The Problem Of System Of Shareholder Representative Action Protecting Minority Shareholder' Equity

The representative action which originated from Britain's equity truly has the full development on the United States. This system is in the early created to protect the interests of stockholder's equity of an equitable on the common law, and it is being touted as a "the invention of genius. In recent years, as the public for the corporation, the contradictions between the minority and the major shareholders are becoming increasingly evident. The representative action has become an effective means for further safeguarding of protecting the interests of minority shareholders, ensuring corporation governance and balancing benefits between the internal major shareholders and minority shareholders. In view of this, governments had adopted the representative of the system, and China also established the system in the newly amended company law in 2005. But because the system is a new legal system in the company law, the relevant regulations to be too shabby and lack of rigor and many problems in the court time can not to be sure there must be laws for people to follow only by the Article 150 and 152 in the company law, and the minority shareholders as the plaintiff in the court have not the real rights for the relief. In practice, the representative action cases by the minority shareholders so difficult that thy always have troubles in the path to protect their legal rights and interests. So this article intends to study advanced experience from abroad and supply a gap to our system in various stages to protect the rights and interests and, truly motivate this system to play its proper role for improving our company law and building a small contribution to economic and legal system.This article extensive discussion followed in accordance with this thinking which deals with a introduction of the law abroad, an analysis of the system of our system, the problems raised at present, and the rational proposal put forward at last. The article analyses the predecessor, the plaintiffs application for the shareholder's qualifications, the onus of proof shared and the costs of proceedings and protecting the rights and interests very thoroughly and carefully, and then on the basis of recognizing the important relationship among them, it takes a description of the measures of other countries whose legal system is developed, and then further combines the relevant laws and the application till the defect appears what is gained from the contrastive analysis. Finally, on the basis of the direction of the future and problems existed with our national conditions it gives advices of improving relevant regulations, hoping to protect the rights and interests of our shareholders, and constantly improve our legal system, the representatives of relevant laws and regulations, and to make our corporate governance become more reasonable.The article altogether divides into four parts to carry on the elaboration and the discussion. The first part is mainly to build the rationale for the full text elaboration. In this part it introduced the elementary theory of shareholder represents, then elaborated the minority shareholder rights' and interests' connotation, then thoroughly analyzed the necessity of safeguard for the minority shareholder rights and interests. In the end of this part, it proves the close relationship between the shareholder and the lawsuit system.From the second part to the fourth part of this article, it concentrates on four aspects the lawsuit system including the predecessor, the plaintiffs application for the suit; the onus of proof shared also the lawsuit cost. The second part introduces the lawsuit system overseas in order to study their rules in these four aspect, and has carried on the thorough discussion on these stipulations with the young shareholder rights' and interests' relations, analyzes our country's concrete provision for as follows and builds the rationale insufficient. The third part firstly combed our country's rules of constructing the shareholder to represent the lawsuit system, and then indicates the insufficiency about the minority shareholder's rights and interests existed, and at last makes a summary. Finally, in fourth part of the article, the author gives some own view and the suggestion to consummate our related law and to the minority shareholder rights and interests should be a better safeguard. The key point and the innovation place of this article are to indicate the shortcomings regarding the shareholder on behalf of the lawsuit system existence and to propose some suggestions combining the analysis. The author hopes that the article can help the judicature to play a better protection role on the minority shareholder's rights and interests.