Study On The Improvement Of The Theory Of Shareholder Derivative Lawsuit In Our Country

Shareholders’derivative action originated from the British equity law, adopted by corporation law of modern most countries. Shareholder derivative action refers to the legal system that shareholders’ tort suit to court when the company’s board of directors or equivalent body delayed in prosecution for infringement to company.The generation of shareholder derivative lawsuit has its unique ideas and background of the foundation. As a kind of relief right, shareholder derivative litigation to file a lawsuit to encourage shareholders to protect the interests of the company as well as provide shareholders with a kind of indirect ways to remedy their rights, to safeguard the legitimate rights and interests of minority shareholders. From corporate governance level, derivative action allows shareholders in the company’s board of directors or equivalent structure delayed in prosecution of the case to the court, in fact is a kind of by the shareholders to oversee the company set up the management mechanism, to perfect the corporate governance structure has extremely important significance.Shareholder derivative action as prescribed by the law of a special lawsuit system, with general lawsuit system has the close relation. But they are essentially belong to two different types of litigation, the division of the two kinds of litigation, is of great significance both in theory and in practice. Derivative action and the direct action in the nature, subject, purpose, and file have obvious different conditions, etc. Our country many scholars called shareholder derivative litigation shareholder representative litigation or shareholders subrogation litigation, therefore it is necessary to clarify it with existing in our country representative lawsuit, creditors subrogation lawsuit, avoid to cause the confusion of understanding.The main content of the shareholder derivative litigation including prepositional procedure of lawsuit, litigant, litigation guarantee system and some other special provisions. Based on the text part mainly has made the detailed discussion on these content, compares different countries are different in some aspects of the company law provisions, on the basis of the argument put forward some own views.In2005, the revised company law in our country is also introduced the system. Company law in the sixth chapter company directors, supervisors and senior management personnel’s qualifications and obligations of the with the provisions of article one hundred and fifty-two of the shareholder derivative litigation system. Which took only a few words will shareholder derivative litigation includes all of the content, the hard to avoid has manufactured, and the revised company law haven’t form a complete set of judicial interpretation, this makes the derivative action in our country some of the holes not promptly improve and remedy, allowing some outlaws drilling a legal loophole. I think shareholder derivative litigation of company law in our country is mainly lack the incentive and constraint mechanism, in order to encourage shareholder derivative litigation and prevent the occurrence of shareholder derivative lawsuit abuse, complement and perfect the system of incentive and constraint mechanism is extremely important.