Studies On The Legal Status Of The Company In Shareholders’ Derivative Action

As an special judicial relief way, the appearance of Shareholders’Derivative Action Regime has an important influence on the corporate governance and shareholders’ rights. It has two functions:the inhibition function on the illegal acts that against the interests of the company and the repair function on the damages of company interests. The status of the parties in the Shareholders’Derivative Action, especially the legal statues of the company in this action is an academic and judicial practice point of contention.Based on researches of the theories and rules in relation to the Shareholders’ Derivative Action Regime of the main jurisdictions, critical acceptance or rejections of the theories and standpoints of domestic scholars, and the Shareholders’ Derivative Action Regime Practice and 176 judicial cases in China, this dissertation,which puts forward three main standpoints of "the empirical research about the Shareholders’ Derivative Action ""the Company should be given the rights to choose whether to enter into the actions", "the Company should enter into the actions as a third party without independent claim", is aimed to construct proper legal structure which is adapted to the theories of the Company Law and the Civil Procedure Law and the juridical practice.After an introduction of the topic and research status in the introduction, this dissertation is divided into three parts:Chapter I:Empirical Research on the Company’s Legal Status. In this chapter, the author will research 176 judicial cases related to Shareholders’ Derivative Action in China, and set up 11 sheets to analyze two parts:"the overall data showed in the Shareholders’Derivative Action" and "Company’s participation in the lawsuit procedure and analysis about the legal status". Through the empirical analysis, the author finds that:(1) More than 70% of the cases showed that the company participated into the procedure of first instance, however, most of them showed that the companies are not participated into this procedure actively and brought into proceeding compulsorily by the court in some cases. (2) Based on the analysis, the litigation position of the Company does not apparently affect the trial result. (3) the Companies enter into the action as a third party in about 90% of the cases, while as a plaintiff or defendant in some other cases; In the second trial, the companies enter this action as the appellant or appellee in more than 30% of the cases, while the Companies’positions in the first trial may have an great influence on the second trial.Chapter Ⅱ:Research on the problems of company forced to join the proceeding. The author will analyze on the issues of "whether the Company should be compulsorily brought into the shareholders’derivative action" based on the empirical research before. This part will solve the problems about the necessity and mandatory of the participation and problems about what litigation status should the Company have in the actions. By combining of the overseas legislative practice and views of the domestic scholars, and suggests that the Company should be given the right to choose whether to enter the actions or it will against the intention of legislation.Chapter Ⅲ:Construction of Legal Status of the Company in Shareholders’Derivative Action. Firstly, the author will introduce the developments and regulations of the Shareholders’ Derivative Action Regime in main countries of the Continental Legal System and the Anglo-American Legal System, and summarize the regulations that is profitable to the issues。Secondly, in relation to the issue "what litigation status should the Company have in the actions", the author suggests that the standpoint "the Company should enter into the action as a third party without independent claim", which can meet the realistic need of the practice. In relation to the drawbacks of the current rules in the Civil Procedural Law, the author suggests that we can perfected the drawbacks by amending the current regime of the "third party without independent claim" and absorbing other proper rules such as the "the Actions Filed by Third Party to Withdrawal the Original Verdict", "the Business Judgment Rule" and "the Reconciliation of Shareholders’ Derivative Action Regime".