Research Of Shareholder Derivative Action

Shareholder derivative action is a almost universally applicable corporate litigation legal system in common law and civil law countries, the application of which have centuries of history in Common law countries. In China, with them2005year newly revised Company Law provided the shareholder derivative litigation system, this system had been initially established in China. Though there has been considerable number of articles of shareholder derivative litigation system in China, it is still very necessary to study of this complex and immature system in-depth. The initial establishment of the system is only the first step. The relevant procedural requires being detailed and specific, and it is lack of maneuverability. Combined with, unlike Anglo-American countries, in our shareholder derivative litigation system, there is no supporting institutional support, no Follow the tradition of the doctrine of precedent case law. In addition, the largest shareholder usually dominant the company in China, so the minority shareholders who want to successfully use the shareholder derivative action to safeguard their rights will be obstacle. So that the minority shareholders do not want to pick up the shareholders derivative litigation weapons to protect themselves, resulting in a small number of the court shareholder derivative litigation. The system does not play its due role.In this case, the shareholder derivative action in the judicial practice is not satisfactory. If we don’t improve shareholder derivative litigation system to thrive in the legislative and judicial practice of this system further, its growing up in the soil of China’s legal system will become a very worrying thing. Therefore, it is necessary to timely perfect this system, and establish the relevant supporting measures to eliminate obstacles to build the incentives of the shareholder derivative litigation, make the minority shareholders smoothly to bring the rights litigation. This article mainly studies the following aspects of the system.The first chapter is an overview of the shareholder derivative action. Then it explains the concept and feature of shareholder derivative litigation system, and the theoretical basis of the shareholder derivative litigation. And analyze the value of the shareholder derivative litigation system on the corporate and social functions.The second chapter specifically discusses the system’s appliance in legislation and judicial status in China, and then analyses the abuse of our derivative litigation low incidence.The third chapter is devoted to the shareholder derivative action institutional arrangements in Common law and Civil law, with a view to its reasonable surface to reference for the appropriate legal transplantation.The fourth chapter studies the measures to perfect shareholder derivative litigation system, mainly the incentive measures, including a series of procedures to improve shareholder derivative litigation system in China, and make up shareholder derivative litigation matching system measures.This article hope that the exposition of the basic theory of the shareholder derivative litigation system, the analysis of the situation of our country and the foreign shareholder derivative litigation system put forward some suggestions for the improvement of the derivative litigation system. The application of the shareholder derivative litigation system will be better. So minority shareholders will be no longer prohibitive to face the shareholder derivative litigation when their interests damaged.