Research On The Shareholder Double Derivative Action

Under the modern company operating model of corporate grouping and parent-subsidiaryization,the traditional single shareholder structure has changed.Under the multi-level corporate structure,the single-model shareholder representation litigation system reveals limitations.If the parent company uses its identity to control the management personnel assigned to or approved by the subsidiary company to implement actions that are detrimental to the interests of the subsidiary,the parent company is liable to be sued as a shareholder because of the interests between the parent company and the parent company.The contact is very close.Once the interests of the subsidiary are damaged,it will affect the interests of the parent company and damage the investment interests of the minority shareholders of the parent company.Under this circumstance,according to the existing legal provisions of China,the minority shareholders of the parent company have no right to file a shareholder representative lawsuit on behalf of the subsidiary.In reality,many cases have not been able to obtain effective relief and fair judgment.In April 2016,the Supreme People's Court introduced the system of dual shareholder representative litigation in the“Corporate Law Judicial Interpretation(4)Consultation Draft”for the purpose of adopting the expansion interpretation method in Article 151 of the Company Law,with a view to promoting parent-subsidiary corporate governance.Improve the structure and protect the rights and interests of shareholders of the parent company.Although the article was not retained in the official draft,it has already reflected China's active exploration of this system.In view of this situation,the article takes the dual shareholder representative litigation system as the research object,and takes the lack of the protection of the shareholders' interests in the practice as the starting point,analyzes the institutional value of the dual shareholder representative litigation,and proposes the concrete construction of the dual shareholder representative litigation system in China.Based on the basic theory of the dual shareholder representative litigation system,the article analyzes the particularity of the system,and it differs from the shareholder representative litigation system in terms of the reasons for the pursuit of responsibility,the relationship between rights and obligations,and the degree of neglect of the company's personality.After summarizing the relevant cases in practice,the author analyzes the value of the dual shareholder representative litigation system.This system is in line with the legislative purpose of China's company law,and helps to improve the company's governance and protection through the implementation of the accountability mechanism.Shareholders' equity under the hierarchical corporate structure to compensate for loopholes in shareholder representative litigation.Through comparative analysis of the legislative and judicial practice experience of the United States and Japan in the dual shareholder representative litigation,based on the actual situation,find a reference.It is proposed that the introduction of this system through judicial interpretation has limitations.The method of amending the "Company Law" should be adopted as the introduction path of the system,and a new system independent of the existing shareholder representative litigation system should be constructed.The specific assumptions should take into account the applicable conditions of the dual representative litigation system,the requirements for the subject qualification and the setting of the pre-procedure.