Research On The Construction Of Legal System Of Double Derivative Litigation Of Shareholders In China

Dual derivative lawsuit refers to the system in which subsidiary directors and other subsidiaries infringe the interests of subsidiaries under the parent company structure.The minority shareholders of the parent company represent the subsidiary companies to bring damages to the wrongdoers in violation of the interests of the subsidiaries.After two subrogations,it is called a double derivative case.Due to the lack of protection of the rights and interests of small and medium-sized shareholders and the large number of large-scale group companies arising from the market development,it is common for the parent company to use subsidiary companies to infringe shareholders’ rights and interests.The related laws have not been able to solve the problems caused by the dual derivative lawsuits.In the case that China has relatively few cases of dual derivative construction and research,the “Judicial Interpretation of Company Law” removes the dual derivative lawsuits that originally appeared in the draft.Institutional regulations.This also makes it more practical to study how to construct the legal system of double derivative lawsuit in our country.This dissertation mainly studies the construction of the legal system of double derivative lawsuit in China from five aspects.First of all,affirming the theory of litigation rights is an important feature of the double derivative lawsuit.Through the traversal of their procedural rights between the parent company and the subsidiary company,the shareholder counters the act of infringing on the company’s interest that is evaded by the single representative action.Then the article sums up the support theory and sums it up into three aspects: the theory centered on the management relationship;the theory centered on damages;the theory centered on the corporate governance structure.Second,dual derivative lawsuits are quite necessary in our current judicial practice.The absence of relevant laws and the “Company Law” under the dual-system company structure can hardly play an effective role in the infringements that exist in the face of multiple corporate structures,and the rights and interests of small and medium shareholders are seriously threatened.Underdiversified violations,many protection measures have lost their original protective effect.Compared with other protection measures,dual derivative lawsuits also have non-negligible effects.On the one hand,they increase the economic efficiency of market players;on the other hand,they protect the interests of public shareholders.Third,draw lessons from the United States and Japan in the establishment of legal systems of dual derivative lawsuits.In the United States,the dual derivative lawsuit was recognized in a series of cases and established the basic rules.Japan has made more detailed provisions on the basis of the double derivative theory of litigation and further developed the dual derivative lawsuit into multiple derivative lawsuits under the ultimate wholly-owned parent company.In this regard,the institutional construction of dual derivative lawsuits under the common law system and civil law system has an extremely important role to China.Finally,on the basis of the above four points,this paper attempts to make a concrete construction of the legal system of dual derivative lawsuits in China:designing from the subject qualifications,pre-procedures and expense guarantee and reconciliation procedures of the dual derivative lawsuit.In the eligibility of the entity,the requirements for the period of shareholding shall be based on a single representative action,and the rule that the shareholding period shall not be less than 180 days shall be adhered to.The shareholding ratio should not be limited.The main body of misconduct should not only be directors,supervisors and senior management personnel,but also include relevant personnel such as accounting and supervision.The parent company’s shareholding ratio also proposes two paths to choose from,but they should all leave some degree of expansion for the existence of multiple derivative lawsuits.The pre-procedure for the dual derivative lawsuit should be based on the premise of localization,with the establishment of a special litigation committee as an attempt to make provision for the participating personnel,the selection methods,etc.The establishment of cost guarantees and settlement procedures can,on the one hand,prevent the occurrence of malicious lawsuits,and on the other hand can ease the conflicts between the company and shareholders.