A Study On The Defendant Of Shareholder's Representative Action

Shareholder's Representative Action is originated from Foss principle in British,when the company existed fake and control is not available,for respecting to Company Self-government and Legal Personality.American respect to director's operation and judgment when reject the action and emphasize on Business Judgment Principle,but Shareholder Represent Action is not a major way to protect minority shareholders in British and America.When company's interests destructed and Legal Personality is oppressed by others,it comes with the Shareholder's Representative Action,it reflects the contradiction and concession of Legal Personality.Comparing with Company Direct Action,Shareholder's Representative Action is a non-normal mechanism,this system major as deter,assisted by compensation and promote director confirm with obligation.As exit of Shareholder's Representative Action,the confirmation of the defendant of Shareholder's Representative Action needs to according with function and position of Action.The scope of defendant of Shareholder's Representative Action and function of Shareholder's Representative Action should unify and then can ensure a harmonious operation for system.The scope of defendant of Shareholder's Representative Action reflects challenge degree to Legal Personality.which has firm connection with company's characteristics,expand the scope means increasing range of shareholder practically right.Our Company Law adopts loose legislative forms,without limitation to defendant scope of defendant of Shareholder Representative Action,hence shareholder,employee,the third people who is out of the company regarded as defendant in practical cases.Judicial Interpretation to Act of Company II allows liquidation committee member listed into defendant of Shareholder Representative Action,because the company is controlled by liquidation committee member,but it hasn't state legal position of liquidation committee member is imitated with director's.Determining the scope of defendant of Shareholder's Representative Action in our country should make reference the system purpose of Shareholder Representative Action,fully respect Company Self-government.Defendant should have similar rights and obligations with directors,there hasn't any other instituted relieve means,decreasing influence corporate rights.Controlling shareholder just have indirect rights in company,as to vote of major items,minority shareholder still has possibility to deny.We haven't confirmed Fidelity Obligation of controlling shareholder which controlling shareholder are responsible to company and minority shareholder.There has other replaceable means can directly protect minority shareholder's interests.If regard controlling shareholder as defendant,strengthen the motivation of minority shareholder to inspect controlling shareholders,influence controlling shareholder to invest company,free director's Duty of Loyalty and the Duty of Care,change corporate rights which existed large advantages.Hence based on this,controlling shareholder shouldn't become defendant of Shareholder's Representative Action.Lift heavy things and clear the light,employee and the third people who is out of the company,their position and obligations to company decide they cannot become defendant of Shareholder's Representative Action.