Research On The Preceding Procedure Of Shareholder’s Representative Action

Shareholder representative litigation system in the development of foreign countries forhundreds of years, the medium and small shareholders rights through litigation withoutmanagement empowerment in a company, filed a lawsuit against the company, the board ofdirectors and senior management personnel and others infringed on the interests of thecompany, in order to protect the company ’s interests, but also to maximize the protection ofthe in a weak position of minority shareholders. But the system also is a double-edged sword,in the protection of the interests of small shareholders at the same time, also easily byindividual shareholders abuse harbour evil designs. In order to prevent the occurrence of sucha situation, the system uses the best, countries in the establishment of shareholder litigationsystem, require the prepositive procedure can limit the system, in order to reduce someunnecessary litigation, the abuse of shareholder’s right, the company actively to exercise theirright to appeal to a urge role. The introduction of China’s legal system of the shareholderrepresentative litigation system is relatively late, the new " company law " revised in untilOctober27,2005, for the first time the system introduced into our country law, and mainly inthe152nd article. The revised company law is complied with the law development tendency,has the very vital significance in the development history of company law in china. But wealso note that, for the152article of the pretage procedure of shareholder’s representativelitigation provisions is a more general provisions, reflected is still some fundamental things,judicial practice, the operability is not strong, many loopholes and the theory of existence,also affect the judicial practice. In order to improve the legal system of company of ourcountry, to adapt to the development trend of Social Firms system, based on its nationalconditions, draw on the successful experience of other countries, this article through theanalysis and research of domestic and international legislation and practice, combined withour corporate governance structure and corporate development present situation, can not copyforeign institution, not behind closed doors, hope for the shareholder representative litigationsystem in the development of our country and improve the good academic preparation. Forthe length and knowledge limitations, this paper only briefly analysis of prepositionalprocedure of shareholder representative litigation system, this paper is composed ofintroduction and text two parts, of which the structure is as follows: The first part, the connotation and system origin of prepositional procedure of theshareholder representative action to do a brief explanation, find out and the necessity of valueof the system of horizontal and vertical from the development process, providing legalsupport and basis for the description and analysis of the preceding procedure.The second part, for example analysis of several representative countries of theshareholder representative litigation procedures. First carries on the analysis of an overalllegislative principle of the shareholder representative litigation system of various countries,the legislation differences in background. Then, the system of shareholder representativelitigation pre-procedure in content were compared and analyzed, including the system,application system, apply for exemption from the principle, advantages and disadvantagesthrough the analysis to find out the system, and combined with the reality of our country, findthe problems existing in China’s leading procedure, to provide the theoretical basis andbackground for the perfection of the preceding procedure of shareholder’s representativeaction system of china.The third part, elaborated and legislation and analysis of the current situation of theshareholder representative litigation procedures, and comparing the provisions of regulationsin China and abroad, find out our country the pretage procedure problems and deficiencies, aclear idea for the system after the improvement and development direction.The fourth part, mainly is the reconstruction scheme proposed a set of feasible ourshareholder representative litigation procedures. Through analysis and Research on the systemof the above second parts, combined with the third part proposed the existence of the systemof our country various problems and loopholes were discussed, especially to explore therationality and superiority of the system are introduced, a suitable for China’s corporategovernance structure of the legislation.The fifth part, summarizes the problems and ideas presented in this paper, through thewhole article elaboration, find the pretage procedure in our country the development directionand Prospect of the derivative action.