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The Research On Basic Problems Of Pre-procedure Of Shareholder’s Derivative Action

Posted on:2015-09-08Degree:MasterType:Thesis
Country:ChinaCandidate:S LiuFull Text:PDF
GTID:2296330467954221Subject:Law
Abstract/Summary:PDF Full Text Request
Shareholders subrogation litigation system originated from Britain, and later byAnglo-American law system and continental law system of other countries forreference in succession.It is plays an important role in a kind of litigation system atprotect the interests of the company and indirectly protect shareholders interests, butat the same time, this system also could affect the operation of the company the rightto authority, influence corporate personality independence, hinder the companynormal business judgment decision makers and other negative effects. Therefore, inthe protection of shareholder litigation between authority and maintain the companyneeds to have a kind of a mechanism for the balance of the two, shareholderssubrogation litigation prepositional procedure arises at the historic moment.Prepositional procedure setup not only makes the company’s separate legalpersonality be respected, and give the firm a authority refused to bad v. opportunity,really need to protect shareholders’ equity is maintained.Prepositional procedure refers to the shareholders subrogation litigation before,must first within the company to seek a variety of possible benefits, that is to say, theshareholder representative litigation is a prerequisite for the company refused to ordelayed in misconduct by themselves directly to the client filed a lawsuit, theshareholders to ask if the company is just the behavior to the meaning of lawsuit,should not and could not subrogation litigation. To this end, usually under the national law of the shareholders subrogation litigation prepositional procedure. In October2005, the revised the company law of the People’s Republic of China (hereinafterreferred to as the "company law" article one hundred and fifty-two established theshareholders subrogation litigation system for the first time, and shareholderssubrogation litigation prepositional procedure were established. The revised companylaw although the shareholders subrogation litigation application objects, the object hasbeen applied for, the types of actionable behavior, front procedures do the rules, therules, from the viewpoint of principle should be more comprehensive under differentsituation are both rules, at the request of the shareholders shall be respectively towhom has the effectiveness of the provisions of the company declined to prosecute,also points out the exceptions of shareholders subrogation litigation can be madedirectly. But shareholders subrogation litigation prepositional procedure as a newlitigation form, the law is too principle, the lack of operability. As a kind of litigationform, must be in operation in judicial practice is necessary for the law has strongmaneuverability, otherwise, the principle of legal provisions may be useless, can noteffectively play its proper role. Will tell from this meaning, in order to makeshareholders subrogation litigation prior procedures, in particular, can play a betterrole in practice, priority is in accordance with the relevant laws and regulations,combine our corporate system and practice according to relevant laws and regulations,the shareholder representative litigation to the relevant provisions of the precedingprocedure b supplement and refinement. In this paper, therefore, shareholderssubrogation litigation prepositional procedure as the research object, adopt the methodof comparative analysis of the shareholders subrogation litigation prepositionalprocedure for this paper, based on the domestic and foreign shareholders subrogationlitigation system of prepositional procedure of investigation, points out the deficiencyof the existing system in China and defects, and targeted Suggestions to modify andperfect.The full text altogether four parts:The first part is the shareholders subrogation litigation summary of prepositionalprocedure. Meaning by shareholders subrogation litigation front system, discusses the value function, it is concluded that the shareholders subrogation litigation on thenecessity of the prepositional procedure.Contrapose to the second part is the typical representative of countries, theUnited States, Japan, in the preceding procedure of shareholder representative actionsystem of application principle, the applicant, the applicant system, immunity systemwere studied.The third part is the study of the shareholder derived litigation law provisions ofthe preceding procedure in our country, of overseas prepositional procedure throughthe above discussion, the comparison and analysis the deficiency of this system in ourcountry exists, and then to the prepositional procedure of shareholder representativeaction some legislative defects are proposed.The fourth part is respectively in the third part puts forward the existingproblems in the preceding procedure in our country, draw lessons from foreign relatedsystems, the prepositional procedure system consummation put forward someSuggestions.
Keywords/Search Tags:Shareholder’s derivative action, Pre-procedure, Legislative suggestion
PDF Full Text Request
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