The Study On Basic Problems Of Pre-procedure Of Shareholder’s Derivative Action

Shareholder’s derivative action has developed more than one hundred years inforeign countries. Although Shareholder’s derivative action has gone from beenprohibited to been conditionally litigated, and then as a routine legal system, it playsan irreplaceable role in the protection of minority shareholders’ interests. As anintegral part of the shareholder’s derivative action---pre-procedure of shareholder’sderivative action plays an important role in shareholder’s derivative action continuousimprovement. Pre-procedure of shareholder’s derivative action balances the interestsof minority shareholders and the company. That’s to say, it not only makes thecompany’s legal personality respected, but also makes the shareholder’s interestswhich needs real protection maintained.Pre-procedure of shareholder’s derivative action requires the shareholder to askfor a request from company before the proceedings. Shareholders should request thecompany’s representative bodies to sue the company infringer. For example,company’s representative bodies abstain from an act or do not reply in excess of thestatutory period, which would cause irreparable damage to company. At this time,Shareholders who meet the conditions provided by law can bring lawsuit to the courtdirectly in its own name. Pre-procedure of shareholder’s derivative action is already very matured in common law countries，but this rule did not introduce into China until2005. The introduction of this rule is a landmark event in protecting the interests ofminority shareholders. But because of the lack of theoretical research and practicalexperience on this rule, the meaning of it is still obscure and it is inevitable to bringdifficulties to judicial practice. Therefore, in order to make the pre-procedure of ournation more perfect, it is necessary to study this rule.In this thesis, Pre-procedure of shareholder’s derivative action will be studied.By studying its value and specific systems, author will point out the shortcomings ofthe rule and put forward the recommendations. This article is divided into five parts:First part, by exploring the difference Pre-procedure of shareholder’s derivativeaction and general cavil litigation, we can conclude that it has its own unique; then byexploring its value, we can come to the necessity of its existence.Second part, analysis of the lawsuit subjects of Pre-procedure of shareholder’sderivative action. Through analyzing the lawsuit subjects, we can have acomprehensive understanding of it and be ready to enter the substance of the litigationprocedures. At the same time, author also analyzes the legal problems in judicialpractice.Third part, applicant of Pre-procedure of shareholder’s derivative action isanalyzed. By comparative analysis of the United States, Japan law, we can concludethat applicant of our country exist many inadequacies.Fourth part, respondents of Pre-procedure of shareholder’s derivative action isanalyzed. By theoretical and comparative analysis, author pointing out theshortcomings of our law and provide with some improvements.Fifth part, first of theoretical analysis of the exemption is analyzed, and then theAmerican exemption is introduced. All what we have done is to provide a betteradvice for our company provision of “urgent situation”.In the process of writing this thesis, the main methods using by author iscomparative study. The inadequacies of this thesis: only analyzing a few basic questions. For instance, where should be the rule regulated, company law orprocedural law? Shall this rule be existed or not? All these questions are not analyzed.