The Research Of The Statute Of Limitation Of Shareholder Representative Litigation

The Statute of Limitation of Shareholder Representative Litigation mainlyincludes the problems of application of the Statute of Limitation, startingproblems and the statute of limitations of suspension and interruption. Thispaper is divided into four parts to discuss the Statute of Limitation ofShareholder Representative Litigation. The main contents are as follows:The first part: The theory analysis of the Statute of Limitation ofShareholder Representative Litigation. What kind of the Statute of Limitation ofShareholder Representative Litigation should apply. Different scholars havedifferent views. The first view is that the general statute of limitations periodshould apply for two years. This view is more in line with existing laws,especially the "Civil Law" requirement. But it did not elaborate the distinctionbetween with the Shareholder Representative Litigation and General CivilLitigation and why the special statute of limitations period should not apply.The second view is that the system should be applied during the specialstatute of limitations statute of limitations period, on the basis of the existingsystem, designed for Shareholder Representative Litigation. This view takesinto account the differences between shareholder representatives and generalcivil litigation exists, but failed to give sufficient and reasonable grounds. Thethird kind of view is that the statute of limitations period should be based on shareholder representative lawsuit claims rather different entities are subject todifferent limitation period.The second part: the application of the Statute of Limitation of ShareholderRepresentative Litigation. Shareholder representative litigation subject scopeof the defendant and the defendant violate the interests of the company on theimplementation of the type of behavior is closely related to the; And violate theinterests of the company behavior of different types, will determine theshareholder representative litigation which the limitation of action shall apply.Shareholder representative litigation subject scope of the defendant, not onlyshould include the company’s directors, supervisors and senior management,controlling shareholders or other stakeholders, such as members of theliquidating committee within the company staff, also includes any otherdamage the interests of the company’s trading counterpart or infringementbehavior person outside the company personnel, etc. The limitation of action ofshareholder representative action, and type of infringement shall, according tothe specific claims, determine suitable for what kind of the limitation of action.Shareholder representative litigation is the basic principle of the limitation ofaction for, in general,"the general principles of the civil law" provisions shall beapplicable to the two years of the limitation of action; Law of such infringementand the claims shall be separately prescribed special the limitation of action,special the limitation of action shall apply.The third part: the shareholder representative action of the limitation ofaction. Shareholder representative litigation calculate since of the limitation ofaction, shall be determined according to the type of the defendant, namely dueto the company’s directors, supervisors and senior management personneland other shareholders, the company internal staff to implement the behaviorof violations of the rights and interests of the company, the shareholders as thedefendant filed on behalf of the lawsuit, the limitation of action shall be from thepoint of shareholder knows or should know that. Due to the third personoutside of the company to implement violations of the rights and interests of the company act, shareholders to the third person as the defendant filed onbehalf of the lawsuit, the limitation of action shall be from the company knowsor should know the point. For company internal and outside of the third peopletogether as the defendant, should be to distinguish, within the companypersonnel to mention the limitation of action of the expiration of the defense,the limitation of action shall be from the point of shareholder knows or shouldknow that to count; Company filed the limitation of action of a third personother than the expiration of the defense, the limitation of action shall be fromthe company knows or should know the point.The fourth part: the shareholder representative litigation termination andinterruption of prescription. In the shareholder representative lawsuit, thestatute of limitations to suspend the main content of the main including forcemajeure and other obstacles. Other barriers include several kinds of commonsituations:(1) the company no capacity for civil conduct of natural personshareholders to the agent or legal representative has not yet beendetermined;(2) the natural person shareholders incapacitated and has not yetbeen set legal agent;(3) natural person shareholder of death had not beendetermined heir or estate;(4) the legal representative of a natural personshareholder died did not specify the new legal representative;(5) the plaintiffshareholders controlled or restricted to claim. In the shareholderrepresentative lawsuit, when filed on behalf of the lawsuit to the court theplaintiff shareholders, the statute of limitations is interrupted. In addition,shareholders directly to ask for, at the request of the infringer the infringer tocompensate the losses to the company; and the infringer to the company in acertain way to assent to fulfill its obligations of, the limitation of time canproduce both of shareholder representative action of legal effect.