Study On The Shareholder Derivative Litigation

Shareholder derived litigation is a new type of lawsuit in our country, the authority of supervisioncompany in the production of modern company law is an important legal system. In this system make upfor the legal person personality defects in corporate law, protect the interests of minority shareholders legaland promote the healthy and orderly development of market economy, maintaining social harmony andstability, etc, play an important role.In our country in2005revised the company law established the shareholder derivative litigationsystem, using derivative litigation safeguard their legitimate rights and interests of small and mediumshareholders have legal basis. But the system of concept explanation has great flexibility, relevantprocedures shall not concrete, operability is poor, and the system in our country is lack of related systemsupport, leading to the show many disadvantages in the current judicial practice, small and medium-sizedshareholders failed to get effective protection.This paper points four parts, respectively from the basic theory and system comparison research athome and abroad, the situation of our country as well as the Suggestions to perfect shareholder derivedlitigation system in China, etc. First of all, from the perspective of the shareholder derived litigationsystems overview and value analysis, introduces the connotation of the shareholder derivative litigationsystem, historical evolution, the difference between the value analysis, and relevant concepts; Second,through to the UK, us, Germany, Japan and other developed countries of litigation and related proceduresand specific provisions in an effort to draw lessons from foreign advanced legislation experience, on thebasis of perfecting our country’s shareholder derivative litigation system. Again, combined with China’sspecific national conditions, and points out that the shareholder derivative lawsuit system in our country atpresent stage in the litigation subject qualification, prepositional procedure, rules of jurisdiction, theexpense and main problems of incentive and constraint mechanism, etc, the small and medium-sizedshareholder derived litigation safeguard the legitimate rights and interests by bringing difficulties; Finally,the author join the fourth chapter, aiming at the shortcomings of the current our country shareholderderived litigation system, put forward their own ideas, specific to the subject qualification of litigation, the procedure of prerequisite and the jurisdiction of the rules, the expense and the improvement of the incentiveand constraint mechanism. Suggest further defined the plaintiff qualification on litigation subjectqualification, expanding the scope of the defendant to infringe on the interests of the company all people;On the preceding procedure suggested that small and medium-sized shareholders conditionally onusprobandi inversion procedure shall apply, Proposed to shareholder derived litigation jurisdiction tojurisdiction rules divided into level jurisdiction and territorial jurisdiction, the jurisdiction of the level of theintermediate people’s courts shall be responsible for, the territorial jurisdiction principle of companies underthe jurisdiction of the local court; Advice on legal costs to undertake before litigation in determining theproper amount on the basis of shareholder derived litigation charge per piece, after the lawsuit as long asthe company through a substantial interests derived litigation, to compensate the plaintiff litigation costs;Suggestions on incentive and constraint mechanism for establishing incentive mechanism of shareholderderivative litigation, at the same time and improve the mechanism of constraint.