A Study On Some Issues Of Shareholder Representative Litigation

The shareholder representative action system is an important system in the company law,which plays an irreplaceable role in protecting corporate governance and protecting the legitimate rights and interests of minority shareholders.In the course of corporate governance,there are many cases in which the majority shareholders use their status to infringe the rights and interests of the company.However,based on the disparity between the financial position and status,the minority shareholders can not reverse this situation,but the shareholder representative lawsuit system gives the small Shareholders and major shareholders to compete in favor of weapons,can more effectively protect the interests of companies and small shareholders.The system of shareholder representative action can be traced back to England in the middle of the nineteenth century,but it is the United States,which has developed into a complete set of legal measures,and then accepted by the civil law countries.China has formally established the shareholder representative action system in the Company Law of 2005,but only the basic issues are stipulated,and many details are not involved,resulting in the judicial practice of "no law" situation,Can only rely on the discretion of judges to be judged.However,due to the uneven quality of judges,resulting in similar cases,the results of the ruling is very different,which is largely unbelievable.Therefore,we need to clarify some details of the shareholder representative litigation system in order to reduce the non-uniformity in the judicial practice in the future,and strive to achieve "law-abiding." But it is not enough to rely on our own strength to perfect the lawsuit system of shareholder representative.It may take decades or even longer to explore,so we can follow the example of foreign legislation to perfect the shareholder representative lawsuit system in our country.This article introduces the basic conception system of the shareholder representative litigation system from the beginning,and then describes the legislation of the shareholder representative litigation system of our country and other countries respectively,and points out the shortcomings of our country,trying to pass the relevant foreign legislation of the study to seek to improve the lack of measures.This paper is divided into four parts:The first part mainly introduces the basic content of shareholder representative action system.This part starts from the basic problems such as concept,characteristic and so on,introduces the historical development process of shareholder representative lawsuit,and compares and analyzes the similar system.The second part focuses on the legislation of shareholder representative litigation in China and points out its shortcomings.In this part,I will be divided into three points to elaborate:First,the law of our shareholders on behalf of the parties to specific provisions,mainly on the original defendant,the company and other shareholders of the relevant provisions of the analysis;The author points out the shortcomings of our country's existing restraint mechanism,including the pre-procedure,the guarantee of litigation costs and the liability of the plaintiff when the plaintiffs shareholder loses the lawsuit.Third,to encourage more shareholders to bring representative action,Clearly pointed out that the insufficiency of the incentive mechanism,including the cost of litigation system,the plaintiff shareholder compensation mechanism and the plaintiff shareholder direct compensation system.The third part is the introduction of foreign shareholder representative lawsuit system,because the shareholder representative litigation system started earlier in foreign countries,and therefore has relatively complete supporting laws and regulations,which is very important in the initial stage of our country,So in this part I describe in detail the relevant provisions of the foreign system,constraints and incentive mechanism.The fourth part puts forward some suggestions on how to improve the representative litigation system in our country by studying the foreign legislation.Hoping to ease the long-standing contradiction between the large shareholders and the minority shareholders,the company and the shareholders,so that the shareholder representative lawsuit system can fully display its charm in our country.