The Research Of Shareholders Double Derivate Suit

It has played an important role in judicial practice,such as the practical protection of the interests of the company,protecting the rights and interests of shareholders,with China's "Corporation Law" provides for derivative suit system.However the types of companies are changing while the our society is constantly developing.The rise of parent-subsidiary companies and the development of group companies have become a new trend.The traditional shareholder representative action system can no longer solve the new problems facing the group companies.So the double derivative suit,first recognized by the American case law,has drawn more and more attention from the academic circles.Japan's adoption of the "Corporation Law Amendment" in 2014 introduced the double derivative suit system and became one of the countries that earlier established the double derivative suit system by legislation.However,all the discussions in academia in our country have stayed at the pros and cons.With Article 31 of the " Corporation Law Explanatory IV "(Draft for Comment)adopted by the Supreme Court in December 2016 in principle,the discussion in Section 151 The term "directors,senior management","board of supervisors" and "supervisors" referred to in Clauses 1 and 2 of the Articles of Association made an expansionary explanation and proposed that "all directors,senior management,board of supervisors,Supervisor.In fact,the article may open a door for the legal application of double derivative suit.However,it did not further clarify the differences between the derivative suit and the double derivative suit.It did not establish the guiding significance for the specific system construction.Subsequently,the formally introduced "Corporation Law Judicial Interpretation IV" also deleted the previous draft In the relevant provisions,we can see that the formal establishment of the double derivative suit system in our country also takes some time to consider.However,the discussion on the dual equity system should indeed be carried out earlier.The double derivative suit system studied in this paper is based on the corporate law of the relevant countries such as the United States and Japan.By combing the theoretical basis and the functional value of the system,Analyze the feasibility of the system and clarify the applicable conditions of the system,put forward the relevant formulation suggestions and take into account the adverse consequences that the new system may produce,and can avoid the consequences to the greatest extent.This article is divided into four parts except for the introduction.The first part mainly introduces the theoretical basis of the system and compares with it to analyze the connotation of the derivative suit right in parent-subsidiary companies,and analyze the theoretical doctrine that supports or opposes the double derivative suit system.Proponents' theoretical sources are mainly the theory of corporate personality denial,the common control theory,the agent-specific theory of performance,the theory of trustees and the ultimate victimization of shareholders of the parent company,while the opponents argue that other remedies exist and will be used by the ill-intentioned As well as violation of the principle of ownership of shares during the same period of the United States.And introduces the functional value of double derivative suit system and analyzes its feasibility.The establishment of the system can solve the plight faced by the parent-subsidiary companies under the current legal system,ensure the rights and interests of the parent companies and maintain a balanced corporate governance.And the second part mainly discusses the conditions for the use of the system and the relationship between mother and subsidiary.Our paper argues that there should be room for dual shareholders to represent litigation as long as the subsidiary should be a wholly-owned subsidiary of the parent company with an exception channel and the subsidiary should be an important subsidiary.The third part mainly analyzes the different attitudes of the Judicial Interpretation of the Company Law and its draft of the Consultation Draft on the citation of the system,and states that although the draft of the Consultation Draft contains some deficiencies regarding the system,the Judicial Interpretation 4 is cancelled.The introduction of the system is even more undesirable.The last section mainly deals with the specific construction of the system in our country and shows how China's relevant provisions stipulate how to design it.