Difficulties And Countermeasures For The Realization Of Derivative Right Of Small And Medium Shareholders

It has been more than a hundred years since the shareholder derivative litigation system came into being.It makes up for the insufficiency of company legal system in protecting shareholders' and company's rights and interests.Since China introduced shareholder derivative litigation system in 2005,China has improved it several times.Although the Provisions of the Supreme People's Court on the Application of the Company Law of the People's Republic of China(IV) was promulgated and implemented on September 1,2017,which refines the shareholder derivative litigation system,overall it is still slightly rough.Through the analysis of the referee cases of the Supreme People's Court,it is found that the small and medium shareholders have encountered some problems in the process of exercising the right of derived right of action,including the conditional restrictions imposed by the plaintiff to file a lawsuit,the improper distribution of the burden of proof,the disorder of jurisdiction,the insufficient compensation for litigation costs,etc.Based on this,I draw on some foreign theories and systems and propose a response plan,hoping to help the improvement of the system.First of all,judging from the number of various shareholder-derived litigation cases accepted by the Supreme Court,there is basically no case in which the shareholders of a joint stock company exercise the right to sue,indicating that the legal regulations impose strict restrictions on the plaintiff's qualifications;and put forward improvement measures in two aspects of the number and time of shares holding equity.The scope of the defendant should also be restricted to avoid abuse of the shareholder's right of derived right of action.For the procedural prerequisite,the court should review the reasons for the company's refusal;the exemption for the procedural prerequisite should be left to the discretion of the court,but there should be a discretionary standard.Secondly,the burden of proof in the shareholder's derivative litigation should not be distributed according tothe civil litigation rules.Otherwise,it will be difficult to prove the infringement liability requirements by the weak position of the small and medium shareholders in the company.Thirdly,for the the shareholder derivative lawsuit jurisdiction,the court should be determined in conjunction with the existing legal provisions and the particularity of the company's litigation.Finally,from an economic point of view,the cost of a shareholder's filing of a derivative lawsuit is much greater than the income that can be obtained.Therefore,the plaintiff's shareholders should be given some incentives to maintain the balance of the shareholder's rights and the corporate autonomy.