The Rights Configuration In Shareholder Derivative Litigation

Shareholder derivative litgation regime is originated from Anglo-American equity law, gradually accepted by some continental law countries, to realize the system value of improving the corporate governance structure, protecting the rights and interests of minor stockholders, and accelerating different interests balance inside and outside the corporate in more countries and regions. However, since the introduction of shareholder derivative litgation regime in revised corporation law from 2005, academia has stressed the function of protecting rights and interests of minority shareholders too much, while the attention to the function of improving corporate governance and promoting the balance of interests is not enough. In order to fully give play to the role of our country’s shareholder derivative litgation regime, based on the developed shanghai as sample, in view of the shanghai court’s shareholder derivative litigation cases for nine years, search after the court how to exert the function of shareholder derivative litgation dispute in the trial, and also hope through the study of this problem can cause the attention on the rational configuration of derivative litigation rights,and urge the court pay more attention to coordinate the interests among the plaintiff, the defendant and the corporate in practical cases.This article focus on the prepositional procedure, the allocation of proof responsibility, the incentive and restraint mechanism to carding the rights configuration system of the shareholder derivative litgation, which is divided into three chapters.Chapter 1: Rights configuration in shareholder derivative litgation. This chapter first introduces issues relating rights configuration through a typical case of the Supreme court, and then expounds the meaning of the right configuration, and focuses on the content and existing problems of rights configuration in shareholder derivative litgation, and finally analyze related laws and regulations in our country.Chapter 2: The empirical analysis on shareholder derivative litgation cases of Shanghai court. Firstly, the chapter introduces the retrieval methods and results of shareholder derivative litgation cases in Shanghai, and then analyzes the current situation and the reason of shareholder derivative litgation cases of Shanghai court, finally, studies on the performance of the prepositional procedure, the allocation of burden of proof, and the incentive and restraint mechanism of these cases empirically.Chapter 3: The perfection of the rights configuration in shareholder derivative litgation. The author thinks procedural guarantees mechanism should be established in this chapter, and also suggest refining the rule of performance and exemption of prepositional procedure, allocating the burden of proof reasonably, constructing incentive mechanism and perfecting the restraint mechanism, so as to promote the improvement of right configuration in shareholder derivative litgation.