Study On The Pre Procedure Of Shareholder's Representative Litigation

Shareholder representative litigation refers to "when the legitimate rights and interests of companies suffer damage and the company delayed in sued, conform to the statutory conditions of the interests of the shareholders for the company in its own name a civil lawsuit against the infringer, shall be investigated for their legal responsibility of a system." The existence of this kind of lawsuit form, caused the company on behalf of party autonomy and the contradiction between the plaintiff shareholders on behalf of the fair. For the balance of both to seek each other in order to resolve this contradiction, outside method would be to shareholders in the shareholder representative litigation system to set a certain threshold lawsuit, in efforts to protect shareholders' rights and does not result in normal operation to the company produces excessive interference design under the legislative purposes of the preceding procedure.In 2005 of the company law of our country, the introduction of shareholder representative litigation system and the preceding procedure is involved, but the existing legal provisions and the supporting measures are not perfect, causing more principled system in 10 years of judicial practice and didn't get a good use of.Unsound prepositional procedure leads to the filter without its own value lawsuit function is damaged, the value of the shareholder representative litigation is difficult to fully put to good use. Therefore, the shareholder representative litigation system of prepositional procedure to carry out targeted research, has very important theoretical and practical significance.This paper takes the prepositional procedure of shareholder representative action as the research object, use the reasoning methods such as case samples analysis,comparative analysis. First of all, through the study of the project of the collected cases typed data analysis, the prepositional procedure operation present situationinvestigation and puts forward the problems in the practice; Second theoretically in-depth analysis and thinking of a problem; Then puts forward the corresponding solutions to solve problems, in order to improve the prepositional procedure of shareholder representative action in China to provide theoretical basis and practical guidance.In this paper, besides introduction and conclusion, is divided into four chapters:The first chapter is a prepositional procedure of shareholder representative litigation theory basis, and from collecting to the trial of cases for empirical research.In theoretical foundation part, first, from the perspective of the shareholder representative litigation and the relationship between the company autonomy, this article mainly discusses the relationship between the prepositional procedure and shareholder representative litigation, the judicial proceedings the plaintiff and the relationship between the prepositional procedure the applicant is analyzed, clarify the concepts, the relationship between the help after analysis. In empirical research part,is to the preceding procedure of shareholder representative action operation status of case investigation, through the collected statistics, in recent years about the case of the sample cases, respectively, to the overall data type, regional distribution and litigation-related company, using the type, the path of the request of litigation, the procedure of prerequisite and exemption situation points type for data analysis, from the data to see the problems in the actual operation, after to refine these issues remain to be further analyzed.The second chapter is the problem of the first chapter of empirical analysis and reflection. Includes the following aspects: first, the preceding procedure of the applicant entity; Second, the applicant to apply for the scope of the discussion; Third,choice of the path of the prepositional procedure as well as the obstacles; Fourth, the question of prepositional procedure censors. Through analyzing the above detailed argument the prepositional procedure of shareholder representative action existing insufficiency, in order to improve.Chapter 3 and chapter 4 is about the empirical analysis of the problems puts forward improvement Suggestions. The third chapter is around the main aspects areput forward on the prepositional procedure limit, apply for matters, the respect such as route choice problem solution, to solve the prepositional procedure exist in the implementation of the function of the conflict. The fourth chapter is to counter the problem of prepositional procedure reviewer questioned, through introducing external examiners, seek a kind of respect company self-determination and protect shareholders' rights to balance the review mode.