Research On Shareholder Derivative Litigation System

The shareholder derivative litigation system is derived from the British case law.The purpose is to give small and medium shareholders a way to safeguard the company and its own interests.At the same time,it can also strengthen corporate governance and standardize the company's system.The system has developed in many countries around the world.China introduced it for the first time in the "Company Law" promulgated in 2005,which appeared in the form of law and effectively formed the old "Company Law".In Article 151,the system has been regulated,and with the development of practice,the Company Law of 2006 explains(1)Article 4,2016 Company Law Interpretation(4)Article 23 Article 26 has also been refined,but there is still some controversy in the theory and practice.With the rapid development of the economy and society and the improvement of people's awareness of rights protection,some applicable problems of the system in the specific social judicial practice still need to be resolved.For example: disputes about the scope of the defendant and the type of infringement of the perpetrator;discussion about the qualification of the plaintiff,some exceptions in the pre-procedure and the specification of the "emergency",whether the commitment of the litigation costs inhibits the enthusiasm of the shareholders to file a lawsuit,etc.These issues still need to be further refined in specific judicial practice.This article is from the following aspects:The first part introduces the basic theories related to the shareholder derivative litigation system,including the concept of the system,the value function,and the emergence and development.A general understanding of some of the basic theoretical knowledge of the system and the value it should produce.The second part introduces the theoretical controversy of the shareholder derivative litigation system and the difficulties encountered in practice.In theory,whether the restrictions on the plaintiff's qualifications are too strict,and whether the litigation costs are reasonable and controversial;in practice,the scope of the defendant is not clearly defined,and the types of behaviors that infringe on the company's rights andinterests are not clear,and the jurisdiction of the litigation is not clear.Set the program to be improved,and so on.By summarizing the theoretical controversial issues of the system,and summarizing the dilemmas in the company and judicial practice,it compares with the state of the system to find problems and ask questions.The third part introduces the Anglo-American legal system represented by the United Kingdom and the United States,the legislation and practice of the civil law system represented by Germany and Japan,and the legislative attitudes and practical effects of the shareholder-derived litigation system in these countries.As the country of origin of the system,development is not ideal.On the contrary,it is more prosperous in the United States.Japan and Germany have introduced the system on the basis of their actual conditions.They all have a certain degree of restriction.Through comparative studies on several countries,mainly It is the impact on the development of the system in practice from the restrictions on the plaintiff's qualifications and the commitment of litigation costs.The fourth part introduces how China can selectively absorb and learn from foreign experience in combination with the actual situation of the country,and try to find a way to improve China's system construction.There are three main aspects:perfecting subject qualifications,including perfecting the plaintiff rules,improving the accused's qualifications;improving the incentive mechanism,such as the reasonable allocation of litigation costs,giving the plaintiff appropriate compensation;improving the restraint mechanism,such as sound pre-procedures,and introducing a guarantee system.