The Comparative Research On The Pre-suit Requirement Of Shareholder’s Derivative Actions

The Shareholder’s Derivative Action is one of the important contents of theCompany Law, however, it becomes the disadvantage to protect the shareholders’benefits as the separation of the ownership and the Management Rights in thecompany turns into an obvious tendency as well as the dominance of Board’sfunction. According to this phenomenon, the huts of shareholders’ interests, countriesin the progresses of cooperation explore a way to improve it which is theShareholder’s Derivative Actions. In China, it seems rather imperative to have acomparative research on the pre-suit requirement of the Shareholder’s DerivativeActions due to the lack experiences of the legislation and the justice of theShareholder’s Derivative Actions.The British opens up the Shareholder’s Derivative Action about the SpecialCase, follows up the establishment of the Shareholder’s Derivative Action inDelaware, America, the Company Laws have been explicitly stipulated and applied tothe commercial actions in Japan, Tai Wan of China, Australia and Canada. In thisaspect, our scholars have discussed a lot, not effective. On the contrary, the correlationmechanism is quite mature abroad and have a comprehensive understanding about theShareholder’s Derivative Action. Therefore, it is high time to thought whether it isvaluable for China to learn about and how to used in practices. From the perspectiveof the comparative research of home and abroad, the thesis makes the display,classification, and analysis how to make good use of the foreign laws and rulesreasonably and take notice of the necessity which combines with our nationalconditions about improvement of the commercial action.The thesis has an analyzation about the basic theory of pre-suit requirement ofShareholder’s Derivative Action, and makes emphasis about the exhaustion of internal remedies principle and other related systems’ comparison. The theses makes ahistorical study about the pre-suit requirement of Shareholder’s Derivative Action andhave a introduction about its historical development, concept, rules and thecomparison of the design structure. As the pre-suit requirement of Shareholder’sDerivative Action divides into permitting processes and the demand futile situation,the thesis will discuss the them respectively. The comparable application processes ofthe pre-suit requirement of Shareholder’s Derivative Action will be discussed in detailwhich includes the plaintiff’s qualification, written request, waiting period and theinstitution that receive the application and etc.it is the comparison about the reviewmechanism and the exception of application, meanwhile, an introduction about thesystem of the Litigation Committee and the business judgment principle and theanalyzation of the necessity of the pre-suit requirement of Shareholder’s DerivativeAction will be arise. Atlast,the thesis puts forward the envision of the improvement ofthe pre-suit requirement of Shareholder’s Derivative Action. By the summarize of theprevious parts and the discussion of the hot issues, the author comes up with the maininnovative points to make a perfect newly review mechanism about the pre-suitrequirement.