On The Shareholder Derivative Litigation Obstacle And Solution

Through the legal means to safeguard the rights and interests of theshareholders of the important way is the shareholder direct litigation and shareholderderivative litigation. Minority shareholder rights are very fragile, it is againstexternal risks and internal violations are relatively helpless, China’s2006CompanyLaw formally introduced a shareholder derivative action system, the system on thepart of directors, supervisors, executives and against the interests of the companyhave a certain deterrent effect, to a certain extent, increase the protection of minorityshareholders.Shareholder derivative action in the real life of our company is not verysatisfactory. The reason is, first of all in the system too principle of, is not conduciveto the specific operation. Followed by the narrow scope of the plaintiff shareholders,minority shareholders of the burden on the prosecution the burden of proof too heavyprogram defects. Many substantive and procedural issues not resolved, willinevitably lead to the practical effect of the shareholder derivative action is notobvious.Problems and defects, and some developed countries for advanced comparisonand analysis, to learn from the national legislative and judicial experience, andlocalization transformation. Separately from the main qualification, pre-program,under the jurisdiction of the guarantee and allocation of the cost of litigation, thebear of the burden of proof, as well as shareholder derivative action settlement,revocation procedures put forward the following suggestions for improvement.To expand the scope of the plaintiff shareholders, clarified that the company’sposition in the proceedings while limiting the number of unnecessary litigation. Inthe pre-program to improve the filtering effect of the meaningless proceedings of thepre-program, so that the pre-program does not spare the form of truly meaningfulderivative action toward the court. At the same time improve the pre-programexceptions, so urgent and meaningful action into the court as soon as possible,keeping the accused in time to escape legal prosecution. Classification, the influenceof the company’s derivative litigation cases on small businesses leave the grass-rootslevel, raised to some big company derivative litigation cases under the jurisdictionof the superior court to reduce the interference of government departments in the derivative litigation, to ensure that cases impartiality. Proposed the establishment ofthe cost of litigation guarantee system, good and evil according to the plaintiffshareholders to determine whether the plaintiff to provide security, to alleviate theburden of the cost of the goodwill plaintiff. Appropriate to increase the defendant’sburden of proof, the fact that between the original defendant’s unfair to certainadjustments. Improve the reconciliation system, and full supervision of the Court ofreconciliation between the original defendant, and certain restrictions on both sidesof the misconduct.