Research On Shareholder Deirvative Litigation System Rfom Equity Perspective

Shareholder derivative litigation system is not only to protect the company andthe small shareholders’ legal rights, but also make up for the defects of companyautonomy and improve the internal management structure. Therefore, in the moderncompany law, Shareholder derivative litigation system plays a decisive role position.In practice, in fact of the problem of company’s controlling shareholders abuse ofcontrolling rights, China’s" company law" stipulates shareholder derivative litigationsystem, but it’s too principle and lack of interoperability. In this paper, from theequity perspective, I will analyze original equity connotation of shareholderderivative litigation system, explain the theoretical foundation of the system, andconstruct specific rules of the system. At the same time, this paper uses the method ofcomparative analysis, historical analysis, theoretical analysis and other researchmethods, in hope of contributing to the development of China’s shareholderderivative litigation system.First, the paper is to analyze the origin of shareholder derivative litigationsystem. The system originated from law of equity, and equity includes threemeanings which are equity value, equity technology and equity norms. Therefore,shareholder derivative litigation system uses equity technical in order to pursue equityvalue. The so-called equity value refers to corrective justice and individual justice.Shareholder derivative litigation system breaks the general provisions which arecompany independent personality, the capital majority and management’sindependent managing rights. In a particular case, to apply the universal rules do notaccord with justice, and shareholder derivative litigation system is to rectify theindividual justice. The so-called equity technology is to remedy the legal loophole,including legislative and judicial technology. The legislative technology is embodied by fuzzy and flexible legislation, and maintenance of shareholders’ substantiveequality. The judicial technology is embodied in shareholder derivative litigationsystem by adhering to the company autonomy as the standard, and the judicialintervention in company autonomy as equity limited means which is to pursue equityvalue by judicial discretion.Second, the paper is to analyze the theory of the shareholder derivative litigationsystem, Based on the perspective of equity, the paper studies the legitimacy ofshareholder derivative litigation system separately from internal and external angles.From internal perspective, shareholder derivative litigation system originated frombodies’ interests balance which are company, shareholders, and so on. Specifically,shareholder derivative litigation system correct the alienation of company personalityindependent and the capital majority, supervise independent operating rights,maintain the shareholders’ equality rights. From external perspective of equity ofcompany autonomy and judicial intervention, shareholder derivative litigation systemoperate with the aid of justice, use corporate governance theory and contract theory toprove the rationality of judicial intervention as external security of companyautonomy. Therefore, we should take the company autonomy as the standard ofjudicial review and limit judicial discretion to realize interests’ balance.Third, the paper is to build the rules of the derivative litigation system. Referringto other countries’ legislation, the paper is based on the body structure of the plaintiff,defendant and the court’s justice, to study China’s shareholder derivative litigationsystem. Specifically, shareholder derivative litigation tries to endow the plaintiff withshareholders’ litigious rights and defendant with balance rights to realize the interests’balance between them, and applies court decisions to balance interests. The plaintiffshareholders’ litigious right is to realize the equity of incentive and constraint which isconfigured in the plaintiff’s qualification limit, lawsuit fees and guarantee. Thedefendant rights balance is reflected in defendant’s range limits and protection ofdefendant’s reasonable operating rights in the pre positive procedure. The courtequity discretion rules are embodied in the costs of compensation liability, responsibility for damages, business judgment rule and the company’s involvement inthe lawsuit.