The Empirical Research And System Improvement Of Derivative Action

The shareholder derivative suit refers to the situation where a company suffers an unlawful infringement and refuses to litigate or is remiss in prosecution and a qualified shareholder can raise a lawsuit using his own name on behalf of the company.Current“Company Law” revised in 2005 formally introduced the shareholder derivative suit.However,its provisions are only about the rough definition of the unlawful infringement and fail to make response to the demands of judicial practice,causing fierce controversy.At the same time,there are a lot of research achievements on academic field,which only stay in the aspect of theoretical research and the introduction of extraterritorial system,paying little attention on relevant present judicial problems.So,empirical research based on practical problems is urgently needed.This paper takes empirical analysis to collect typical cases of the shareholder derivative suit and makes use of it to summarize issues.Furthermore,through normative analysis,this paper come up with reference standards and sound rules aiming to solve problems mentioned in it.This paper is divided into six parts:The first part combined with statistical cases aims to analyze the basic problem of the shareholder derivative suit.Defining legal relation between the parties accurately is the basis of a case trial,but how to achieve the mission is still in chaos.This leads to the predicament that many courts are confined to determining whether the company has damage or not based on the view of substantive law or not and neglect the fact that whether the shareholder are qualified to be the plaintiff.The second part draws the following conclusions by analyzing litigation amount,plaintiff's qualification and plaintiff's share proportion:(1)The number of the shareholder derivative suit is limited,and the main cause of it might be the lack of incentive mechanisms;(2)those who are willing to sue is not minority but strong stockholders and that is because they want to have control over the company;(3)the standard of being a qualified plaintiff in judicial practice is having the enterprise registration and ownership of shares should be conform with the principle of sustained possession.In the third part,through analyzing the statistics of the defendant's identity in the shareholder derivative suit,this paper defines the potential defendants besides directors,supervisors and senior managers of companies.Theoretically,the extent of potentialdefendant is too extensive in judicial practice,so this article gives a clear interpretation about it.In the fourth part,this paper estimates the prepositional procedure of the derivative litigation and concludes the legislative omission,the form and content requirements of it.In addition,this paper puts forward some specific situation where the exemption of the prepositional procedure should be applied.The fifth part,the shareholder derivative suit requires damage to the company,and the interpretation of damage in judicial practice is limited to actual loss and monetary loss.This paper proposes that it should be expanded,so that it can include the risk of loss,and the method to remedy the damage should be applied more flexibly.In the sixth part,drawing lessons from the successful overseas judicial practice in solving similar problems,some suggestions are put forward for the improvement of the shareholder derivative suit.Firstly,the incentive mechanisms of the derivative litigation need to be improved.Secondly,procedure of conciliating is required to be established and advanced.