The Selection Of The Dominant Legislative Mode Of Company Law On Shareholder’s Derivative Action In Our Country

Shareholder derived litigation as an import, in 2005, the company law in our country to the rules. Shareholder derived litigation, however, has the characteristics of the civil procedure law, in terms of its legal attribute should belongs to the category of the civil procedure law, but that doesn’t mean the civil litigation law rules all adapt to shareholder derived litigation, or need special legislation. Scholars since the shareholder derived litigation in our country, has been to whether or not to introduce, after the introduction of the perfection of concrete system as the main line, but not shareholder derived litigation of our country’s legislation mode. According to the foreign legislative experience, mainly formed dominated by procedural law legislation mode, such as the UK, and dominated by company law legislation mode, such as the United States.Shareholder derived litigation originated in common law, resulting in development is based on protect the interests of minority shareholders. Based on the limitation of corporate personality independence, when the company interests is damaged, the company to maintain their own interests, but the company filed a lawsuit in the litigation right is limited, the litigation right is derived from the shareholders, the shareholders enjoy the litigation right is derivative, indirectly by on behalf of the interests of the company to maintain their own interests. According to our country’s reality, the current company law already has carried on the preliminary rules on shareholder derived litigation, as a procedural law and procedural law needs to keep its stability, and can’t like corporate law include changing economic rules.Shareholder derived litigation at the beginning of the produce is based on protecting the interests of minority shareholders, so as to protect the interests of the weak in the company as the main function. But with the passage of time, the separation of ownership and management rights, shareholders of the company’s ability to control, shareholder derived litigation development become balanced internal interests, as a shareholder in the company internal management and supervision, directors, supervisors and senior staff effective means, to ensure that the internal organs and their staff can dutifully to perform the duty of loyalty and diligence obligations. At the same time, the shareholder derived litigation plays an important role in the implementation of the law, legislation and judicial practice of shareholder derived litigation and related company to build the system of is of great significance. Meanwhile, in the building of shareholder derivative litigation should focus on coordinating corporate and civil litigation law, with the relationship between the general law and special law of mutual convergence, lack of coordination and the space to be perfect.This article starts from the legal property and legislative model. According to particularity of shareholder derivative litigation, the legislative status quo at home and abroad, function and law enforcement and so on several aspects should be dominated by company law legislation system of our country. First of all, is the particularity of its derivation largest shareholder derived litigation, due to the failure of the company’s internal relief, is a breakthrough of corporation personality and derive rights. Shareholder derived litigation is indirect, the purpose of its purpose and with the company law concept. Second, the existing provisions of the company law and foreign legislation for reference to facilitate dominated by company law. The regulation of our country at present of shareholder derived litigation, though not perfect, but the preliminary model has been built, dominated by company law procedure features are difficult to include shareholder derived litigation, foreign legislative experience also provides more reference for our country. Again, the evolvement of the functions of shareholder derived litigation is more suitable for dominated by company law legislation system. Shareholder derived litigation in the initial stage is mainly aimed at small shareholders’ rights are violated and is main purpose to protect the interests of small shareholders, but with the development of the company, shareholder derived litigation has become shareholders to participate in corporate governance, constraints, the management of a legal weapon. The shareholder derived litigation dominated by company law has a guiding significance in law enforcement. Finally, law led to the need for coordination between the legislative model of corporate law and civil procedure law, in order to achieve convergence complement each other.