Double Shareholder Derivative Litigation System Construction Of The Plaintiff

Shareholder derivative litigation system is the important foundation theory of company law system around the world,plays an important role and provide relief channel in the protection of minority shareholders.Shareholder derivation litigation system in China formally established in the 2005 revision of the company law.But the only provision is article 151 of the system and it is limited to complanation,also it's difficult to solve the dispute over the reality of our country.As company is the important economic subject in the market,has been gradually showing a hierarchical,three-dimensional development momentum,parent-subsidiary company structure tend to be norm.In this context,the complanation,simplification of our shareholder derivation litigation system tend to be have more problems,also can not be able to protect rights and interests of minority shareholders,and is bound to hinder China's economic development.For example,in the architecture of parent-subsidiary,when the director and senior managers of subsidiaries infringe the interests of subsidiaries for individual interests,the parent company as a big shareholder of subsidiary,its interests could get indirect damage,thus the shareholder of the parent company will get the damage as well.In this case,if both parent company and subsidiaries company don't call the infringer inside to account,the shareholder of parent company also can not lead a derivative suit against the infringer inside the subsidiary company cause it's a “outsider” to the subsidiary company.Therefor many countries consider to let the shareholder derivative litigation “go through” the parent-subsidiary company and support the double shareholder derivative litigation.Scholars in our countries has a wide range of discussions in recent years,but still few discussions to the expositions of system construction.At the same time,the company law judicial interpretation(draft)(4)has been passed in principle by the Supreme People's Court,and article 31 in fact opens the legal gate of double shareholder derivation litigation in our country.The plaintiff system as the core content of double shareholder derivative litigation system,should firstly make reasonable and scientific regulation,to lay the foundation of our country's double shareholder derivation litigation system.Based on all above,this paper on the condition of discussion of double shareholder derivative litigation system foundation,analyze the essence requirements and procedures requirements of the plaintiff system in detail,and put further suggestions on the company law judicial interpretation(four)draft article 31.The introduction mainly analyzes the dilemma of protection of the small shareholder faced,the put forward the background and research significance of the double derivation litigation,on the basis of the analysis of system theory,by the research of double shareholder derivative litigation system of the United States,Japan and other countries and domestic related research,using the method of comparative analysis,historical analysis method and so on research methods,to reshape the shareholder derivative litigation theory,to clarify the internal logic and the external framework of the theory.The first chapter is theoretical basis.Through the double the analysis of the definition and features of the shareholder derivative litigation,clarify its connotation.And then analyzes the double shareholder derivative litigation support theory,the objection of the idea of support theory including pricking company veil theory,common control theory,and the theory of fiduciary duty,but the theory is not perfect.Objections are in violation of the same ownership and other relief means.The same ownership rules have multiple questioned by international scholars,the main analysis of other various relief means,prove that it is not able to play the role of instead of double shareholder derivative litigation,main drawback is that violated the principle of deep rock,collateral damage is hard to calculate and so on.So that the superiority of double shareholder derivative litigation system,the corresponding litigation law should consider giving the parent company shareholders to strengthen the protection of minority shareholders.The second chapter points out the necessity of constructing shareholder derivative litigation system in China.Our country existing shareholder derivative litigation system itself has the plaintiff is harsh conditions,uneven parent-subsidiary corporate governance structure obstacle for obstacles,the system can't satisfy at present,the company under the background of the development of three-dimensional protection for small shareholders' demand.So it is necessary to expand the plaintiff main body,the applicable scope and double shareholder derivative litigation can achieve this purpose.Besides shareholder derivative litigation in our country still stays in the perspective of complanation,ignoring the three-dimensional structure of the parent company of protection of the rights and interests of minority shareholders.For parent's relative lack of minority shareholders' interests protection measures,a large number of double shareholder derivative litigation case can't get reasonable judgment.By comparing the two cases of this kind of case in court attitude shift,which leads to a double shareholder litigation conforms to the real needs of the market economy in China,related party transactions,the parent company,minority shareholders abuse;Group company subsidiary to the parent company can not do it in the effective regulation of prevalent phenomenon,an urgent need to build a double shareholder derivative litigation system.Chapter 3 analyzes the essential elements of a qualified plaintiff.Due to the double shareholder derivative litigation has a dual nature,the substantive elements are also divided into two levels——The plaintiff is the parent company shareholder;The parent company should fully hold the subsidiary.In the case of the double shareholders' derivative action,the definition of the control relationship between the parent and the subsidiary is analyzed and the conclusion: Full ownership theory is most appropriate.The second part,in the aspect of parent company shareholders and the parent company to the plaintiff's stake,the holding time of concrete.Although the author discusses the holding time and the proportion of rigid holdings of the irrational provisions,and in the case of double shareholders in the lawsuit will be due to differences in the form of parent and child companies unfair,it is recommended to gradually cancel the holding period limit,but in order to better with the original system of convergence and coordination,I propose to follow the shareholders of the lawsuit in the shares of the limited shareholding and holding time limit,reflecting the cautious attitude towards the construction of the new system.In addition,in the special circumstances of stock exchange and share transfer,the parent and subsidiary companies are wholly-owned,and more than the general situation,the parent company shareholders and subsidiaries have more closely linked,I suggest that in the special circumstances before the occurrence of litigation,the plaintiff shareholders are not due to special circumstances and the loss of qualified plaintiff identity.But after the occurrence of special circumstances,the general situation is applicable to the regulation.Holding time,such as the special circumstances have been brought before the shareholders of the proceedings,the author suggested that the plaintiff's holding period should be from the parent company shareholders in the special circumstances before the start of holding the original shares of the company began,Ie cumulative calculation,thereby reducing the more profitable shareholders to raise the threshold of litigation.The fourth chapter sets out the procedural elements of the plaintiff system of the double shareholders' representative litigation system.Based on the dual shareholder representative litigation and ordinary representative litigation in the same strain of derivative,As well as the taxonomy that is derived from the internal relief of the company,in the same way as ordinary representative action,a double shareholder representative should also set up a prerequisite procedure.Unlike ordinary representative litigation,shareholders of the parent company are required to file a lawsuit if the parent company and the parent company are lazy.Finally,the article lists and analyzes the several ways in which the dual shareholders represent the procedure—— "First to the subsidiary","first to the parent company","respectively,to the parent company and subsidiary","one-way subsidiary filed and told the parent company".And concluded that "one-way subsidiaries to mention and inform the parent company" is the most reasonable model.