A Study On Several Issues Of Stockhoider’s Derivative Action System

Shareholder derivative action by others against their internal organs for variousreasons, but delayed in exercising the right to appeal the shareholders for the overallinterests of the company in its own name to the court proceedings, called for theprosecution of its liability litigation system. The system established by a court in theUnited Kingdom, the the mature developed in the United States, is conducive tosafeguarding the legitimate rights of small shareholders and improve the company’sgovernance structure. Our shareholder derivative action introduced in the amendmentsto the Law of the People’s Republic of China in2005, with international legalstandards, greatly contributed to the modernization of our laws. Regrettably, thesystem in our country is just a matter of principle provisions not related supportingsystems also limit its efficacy play. This paper introduced shareholder derivativeaction connotation, elaborated on the basic theory, including the basis of substantivelaw, the basis of procedural law as well as the value orientation of the system itself,then with extraterritorial wears relatively perfect proposal put forward for our country.The paper is divided into five parts.The first part of this paper through the presentation of the case, pointed out thatthe problems caused by it. According to the issues related to the elaboration of thisarticle. In the second part analyzes the basic theory of the shareholder derivativeaction, connotation derived from litigation and the difference with Direct Action, thevalue orientation of the legal basis and the system itself interpretation of the relevanttheory, and lay a solid foundation for the perfect proposal. Defined on shareholders’right to appeal, citing the current theories, such as shareholders’ rights, said the subrogation rights of beneficiary and custody of said and made it clear that the pointof this article for the shareholders the right to say. Physical aspects from generalizedparties and litigation play two theory and explain the generalized the parties theoriesof rationality. The third part through the introduction of extraterritorial law, analysisof the pros and cons, and pointed out that China can learn from places such as theUnited States, the cost of litigation guarantees the system. The fourth part is the focusof this article, that is proposed to improve the provisions of the shareholder derivativelitigation related to improving the theory of the recommendations and procedures.Specifically, from the deficiencies of our current shareholder derivative action, theproposed redefinition of the plaintiff qualified, including the objective aspects andsubjective aspects. Second, the provisions of the pre-program improvement andrefinement. Third, is recommended to improve the provisions of the relevantprocedures, such as jurisdiction prove responsibility and counterclaims provisions.Last is guaranteed compensation claim provisions of the litigation costs, the analysisof the reasonableness of the system and the reliability of their method. The last part ofthe solution to the scenario in this article, the use of the above analysis theory,pointing out that the solution of the case.