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The Legal Research On Litigant System Of Shareholder’s Derivative Litigation In Our Country

Posted on:2014-11-27Degree:MasterType:Thesis
Country:ChinaCandidate:H M WangFull Text:PDF
GTID:2256330425464384Subject:Law
Abstract/Summary:PDF Full Text Request
The new "Company Law" of our country revamped the1993version in2005and it has added shareholder’s derivative suit system. Academics pays more attention to problems in this system, thus there are so many researches about it. But until now, scholars in academia haven’t reached a consensus on many aspects, which proves that it is difficult to make a research in this field, on the other hand, it is very meaningful and significant. The thesis makes a research on problems of litigant system of the shareholder derivative litigation in our country.Firstly, through analyzing some classic examples in reality, the paper concludes and makes us reflect on some problems about litigant of shareholder’s derivation suit system in application. Secondly, based on the fundamental theories of shareholder’s derivation suit system, the paper explains its meaning, historical development and its connections and differences with some relative concepts. On scope of shareholder derivative litigation plaintiff qualification of the parties in a case, the defendant, companies and other shareholders’ status and other issues are discussed in this paper. By analyzing and summarizing relevant materials, this paper puts forward questions and problem-solving ideas.This paper holds that the eligible scope of plaintiff should be expanded to other shareholders besides ordinary shareholders, including registered shareholders, bearer shareholders, apparent shareholders, dormant shareholders and other shareholders who have many forms of equity participation. With the limitation of shareholders’ qualification as the plaintiff, the shareholders are demanded directors, supervisors and senior management personnel with the consideration of the representative and justice of the shareholders as the plaintiff. What’s more, we should put limitation on the continuity of shareholding, that is, shareholders are demanded to hold shares continuously, in order to prevent somebody abusing shareholder’s litigation rights for benefits. About the eligibility of the defendant, the existing Company Law should make a clear boundary. It can classify supervisors, directors and senior managements as the defendants. Besides, on some specific circumstances, the defendants also include controlling shareholders, actual controller in the company, the launchers of the company’s establishment and liquidator of company’s bankrupt. Whether we can regard administrators, staffs who infringe on the interests of the company and the third party in exception of the company as the defendant, it needs to be considered seriously by the internal rules of business judgment. In addition, faced with different defendants, there are various regulations about prosecution behaviors at each stage of a company, such as establishing period, operation and liquidation. Last but not least, company should be endowed with independent litigation rights. In that way, the company in third party capacity can attend the litigation to protect the interests of the company and shareholders when shareholders as the plaintiff do harm to the company again. As for the status of other shareholders, the paper mentions that the court allows shareholders to attend the litigation when the plaintiffs who institute legal proceedings are few. If there are a lot of plaintiffs, it is better to choose someone as the representatives. To shareholders who do not attend the litigation, they should be endowed with supervision power to supervise the validity and adequacy of the plaintiff shareholders’procedural acts adequately. And they also have rights to replace the plaintiff when shareholders as the plaintiff do not meet the prosecution conditions.Through the research on litigant system of shareholder’s derivative litigation, I hope this thesis will provide beneficial reference points for perfecting Company Law in our country. At the same time, I hope the research achievements can be used into practice and contribute to the healthy development of company.
Keywords/Search Tags:Derived litigation, The plaintiff, The defendant, Company, Shareholder
PDF Full Text Request
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