The Study On Pre-suit Demand Of Shareholder’s Derivative Action

Since the creation of shareholder’s derivative action system in Britain and America, the system has become the most important means of prevention and relief that the majority of shareholders make use of it to prevent the abuse of right to operate and oversee the company’s management. Then, many other countries accept this system. However, the shareholder’s derivative action also has its drawbacks. In other words, if the justice was introduced into corporate governance, it bounds to affect the company’s autonomy, and also likely to become a tool for malicious shareholder to abuse of lawsuit. Ultimately it will have a bad effect on the day-to-day operations of the company. So the shareholder’s derivative action must it be restricted. As one of the means to limit, the pre-suit demand of shareholder’s derivative action, on the one hand, will filtered out a part of malicious actions through a review of pre-suit demand, which can ensure the quality of the derivative action, on the other hand, will ensure the company’s independent business judgment and make autonomy in compliance with the maximum extent. Pre-suit demand aimed at seeking a balance between safeguarding shareholders’interests and respect the independent character. China introduced the shareholder’s derivative action system in2005when "Company Law "was amending, and also provided the preposition procedure. Although the "Company Law" has already established the pre-suit demand, the author believes that as the reason of the provisions are so simple and imperfect have difficult to adapt to the current situation of China’s corporate governance.Therefore, this paper through the inspection and research of American, British and Japanese pre-suit demand of shareholder derivative action, aims to point out the shortcomings and deficiencies of our existing system. In the end, I will put forward recommendations to modify and improve the system, making the system more perfect. This article is composed by two parts of the preamble and text, which body part is structured as follows:The first part of this article is a brief introduction on pre-suit demand of shareholder’s derivative action system, and then the concept and characteristics of the system are introduced respectively.The second part is the introduction and evaluation of foreign legislative status quo. On the basis of summarizing related systems in the United States, Britain and Japan, that part evaluated applicants and content of the application, together with exemption system and so on, to expect a reference for our country.The third part deals with China’s legislative situation and existing problems. Specifically, this part analyzed the problems in China’s pre-suit demand related to the applicants, content of the application, exemption system, judgment on the effectiveness of the company’s decision and so on.The forth part, facing of the existing problems and deficiencies, which learned from the foreign system and combined with this study, made a number of suggestions for improving the China’s pre-suit demand of shareholder’s derivative action system.