Research On The Litigation Status Of The Company In Shareholder Representative Lawsuit

Since birth, shareholder representative litigation system has passed160years ofhistory, but in China until the company law revised in2005formally established theshareholder representative litigation system. Shareholder representative litigationsystem in our country starts late, compared with the developed countries there is a lot ofshortcomings, among them, the more outstanding is what the status of company is in theshareholder representative litigation in our country law is not clear. The litigation statusof the research company shareholder representative lawsuit, is helpful to perfect ourlegislation, strengthen the guidance of the judicial practice, promote the shareholderrepresentative litigation system play a more important role.This paper around the company in the shareholder representative litigation status,analysis of the concept of shareholder representative action and its historicaldevelopment process, and introduces the characteristics of the shareholderrepresentative litigation system from the perspective of the shareholder representativelitigation system of the parties, raises our country company law status quo in theshareholder representative litigation. Although our country has not clearly stipulated inthe company law, company law in the shareholder representative litigation status, but tosolicit opinions from the court public draft of judicial interpretation and local highcourts introduced local judicial interpretation and the mainstream academic point ofview, position the company no independent claim to the third person moredown-to-earth. To this end, the author from the perspective of entity rights andprocedural rights analyzes the company shall be listed as a theoretical basis to a thirdparty without independent claim: entity rights from "shareholder rights, and said, thesuit right of the shareholder representative litigation law and economics analysis, thefunction of the shareholder representative litigation litigation bearing" three aspectsanalysis, program right from "bear theory, theory of due process and legal theory of thethird person" three aspects analysis, fully show the company positioning no independentclaim to the third person of rationality.In addition, the author applies the method of comparative analysis, in Britain, theUnited States, Japan and other countries of the shareholder representative litigationsystem are discussed in detailed studies. Among them, the Anglo-American countries will company located in the status of shareholder representative litigation is in the formof the "defendant" and "essentially the plaintiff", whereas Japanese firms can choose tothe plaintiff identity to participate in litigation, also can only as an aid in the participantsof the plaintiff or the defendant party joined the lawsuit. British and American countriesand Japan in the historical development and the difference of litigation theory, caused tothe company in both the status of shareholder representative action has a differentposition. In contrast, the situation in our country, the author thinks that the companymay be defined as no independent claim to a third person in accordance with the currentlawsuit system in our country, to force companies must participate in the shareholderrepresentative litigation can improve the system more utility.Finally, the author summarizes the company shareholder representative on behalfof the lawsuit position of complement each other, learning the foreign advancedexperience in system, from the scope of the company status, qualification of the plaintiffand the defendant, in the shareholder representative litigation rights and obligations, thecompany involved in the shareholder representative litigation expenses standard forfurther consummates our country company status of shareholder representativelitigation system put forward its own Suggestions.