On The Parties System Of Shareholder’s Derivative Action

The establishment of the Shareholder’s Derivative Action in Company Law of the People’s Republic of China, along with the shareholder’s direct litigation, the resolution defect litigation and the disregard of corporate personality litigation which form a relatively complete system of the Company Law litigation. During the whole system of Shareholder’s Derivative Action the identification for the scope of parties undoubtedly is the most important element and the found action stone which decides the movement of the process for Shareholder’s Derivative Action. However, in our new "Company Law" the provisions of the parties are too principled judicial practice,besides, there are also a lot of controversy. Based on legislation and judicial practice of our country, this paper gives advices to some prescriptions in new "Company Law" by investigating legislation of other countries and regions.This article based on the Company Law and civil procedure law and included Literature research methods, Comparative analysis and Historical research methods.It traced the origin of the system and made a Further studies on the theory and Comparative analysis of advanced legislation and relevant judicial practice. And then concerning our Legislative Defects, it put forward some suggestions.This paper could be divided into5parts. Chapter1is the preface which introduction the purpose,methods and, meaning background and so on of the study. Chapter2of the Paper gives a brief introduction of Shareholder’s Derivative Action system, including meaning and historic evolution, and then analyzes advantages and disadvantages of theory, Proves the rationality of parties litigation rights in derivative litigation. Chapter3of the Paper expounds plaintiff qualification in derivative litigation and elaborates on Plaintiff shareholder’s qualifications in our country based on comparison of the qualification between several countries. And based on principles of the plaintiff identified as the standard of the plaintiffs proposed stake should be reduced, and for a reasonable period of ownership, Then make the suggestion on the plaintiff party’s legal status in derivative action. Chapter4of the Paper discusses the defendant’s legal status in the derivative action. China’s judicial and legislative refer to the practical experience of United States, the scope of a shareholder derivative litigation, the defendants not only includes company directors, supervisors, managers and other internal staff, the company also includes a third external person, such a system designed for our initial establishment of the status derivative litigation system is not desirable. The defendant scope of derivative Action should be limited to the directors of companies, the directors of the board of supervisors, managers and other senior management staff and controlling shareholders and the liquidator of actual control, but does not include corporate debtor, the executive officers who violate the interests of the company and other externals. Speculative litigation and regulatory mechanism is not sound restrictions, which not only helps prevent the misuse of derivative litigation, insurance companies to operate independently, they can also fulfill derivative litigation in protecting their interests, and protect the interests of small hare holders in the first place. Chapter5of the paper discusses the status of shareholder derivative litigation in special subjects. Through comparative analysis of legislation shareholder derivative litigation states companies and other shareholders, shareholder derivative suits our proposed reasonable position in the company’s shareholder litigation and the company.