The Proper Party Of Shareholder Derivative Suit

The original intention to design the Shareholder derivative litigation system is protecting the interests of small shareholders which will not controlled by agencies against, how to determine the shareholder derivative litigation, the parties, for exerting the function of this system has great significance. The plaintiff is the main body of the lawsuit, the plaintiff's eligibility is the shareholder derivative suit should be the first to solve the problem. In our existing company law, for the plaintiff qualification of the shareholder derivative litigation do the corresponding provisions; in the limited liability company, shareholder derivative litigation plaintiff only shareholders qualifications can be filed a lawsuit. In a company limited by shares, the shareholder derivative litigation the plaintiff need to simultaneously satisfy two conditions: number of holdings and the time constraints only has the right to file a lawsuit. The above provisions are aimed at the plaintiff's objective qualifications, the lack of the plaintiff's subjective aspects of the provisions of the plaintiff filed a lawsuit is based on good faith does not require. Combined with the existing provisions of extraterritorial legislation in shareholder derivative litigation system and its development and evolution. The author believes that China's current restrictions on the objective qualification of plaintiff in shareholder derivative litigation is too harsh, the provisions of the subjective qualification of plaintiff there is a lack of. Shareholder derivative litigation defendant is in addition to the plaintiff another important parties, the defendant qualification of identified the author thinks that needs to be discussed from two aspects, one is the defendant should have what kind of objective qualification, the extraterritorial legislation in the defendant qualification of provisions exist in two ways: freestyle and restrictions, free style is of the shareholder derivative litigation defendant subject is not limited to, constraints, on the other hand, generally speaking defendant strict limits between the shareholders, directors, supervisors and senior management. Take the provisions of current of the defendant qualification of the shareholder derivative litigation is free style, any infringement of the legitimate interests of individuals or organizations can is listed as a defendant in shareholder derivative litigation. Therefore, the author believes that limit the scope of the subject of the defendant is still necessary. The original intention of the establishment of the shareholder derivative litigation system is to prevent the failure of the company's decision-making system, internal stalled a solution, when companies subject to external infringed by the third party, as a legal fiction of independent legal person, the company enjoys the right of action can not, of course, transferred to shareholders. Existing laws for the scope of the defendant in the shareholder derivative action, but generally expressed as a violation of the interests of the company, the author believes that the shareholder derivative action should be detailed provisions. In addition, the company, other shareholders will not participate in litigation to participate in the status of litigation, how to determine their legal status and how to protect their right is difficult to find the answer in the existing laws. How to determine the parties in the derivative action, how to make it conform with the existing legal system, how to protection the rights and interests of small shareholders, that needs for a long-term discussion and practice.