Research On The Conditions Of Prosecution Of Double Representative Litigation Of Shareholders

According to the report,2018 hundreds of billions of business income enterprises reached 172,an increase of 15 over the previous year's 157,the increase in the number of recent highs.This shows that more and more large enterprises through the establishment of branch offices,subsidiaries to broaden the industrial chain,China's enterprise group trend is becoming more and more obvious.Although collectivization can gather capital power and enhance the competitiveness of the company,it also brings with it the difficult problem of protecting the interests of the minority shareholders of the parent company.When the management of the subsidiary infringes the subsidiary,if the parent and subsidiary companies do not pursue their recourse,it will cause the interests of the subsidiary cannot be redeemed.Furthermore,the indirect losses endured by the small and medium-sized shareholders of the parent company cannot be relief.At present,many related cases have appeared in the judicial practice of our country,but most of the courts have finally dismissed the claims of the shareholders of the parent company on the grounds that the subject of the lawsuit is not suitable.In the new economic situation,how should the law break the barriers of traditional rules and protect the interests of minority shareholders in the parent company? As early as the last century,the United States has established the dual representative litigation system of shareholders in the form of case,and Japan established the system in the form of legislation in the new company law in 2014.China's attempt to introduce this system in 2016,although it ultimately failed to achieve it,is sufficient to see the necessary urgency for its establishment.Shareholder representative litigation is a breakthrough use of corporate personality,in the process of application of litigants,litigation and so on have set strict restrictions on the conditions.As an exception,the double representative action of shareholders established on the basis of shareholder representative litigation should set a high threshold.From the perspective of balancing the protection of shareholders ' rights and preventing abuse,this paper discusses the prosecution conditions of the dual representative litigation system of shareholders from four aspects of the holding relationship of the parent company,the importance of the subsidiary company,the litigants and the pre-procedure,in order to establish the system for the early years of our country and make up for the gaps in the legislation.First of all,the author takes the concept of dual representative litigation of shareholders as the starting point,and studies and constructs the ontological problem of this system.The dual representative action of shareholders is essentially an exception to the principle of proper plaintiff,which represents the cross-exercise of the right of action,and the shareholder's right to initiate litigation is both representative and subrogation.Then through the induction of 10 typical cases in practice to expound that the system can skillfully solve the single-weight representative litigation cannot adapt to the development of enterprise collectivization defects.Then it analyzes the significance of clarifying the conditions of prosecution of the dual representative litigation of shareholders,which is not only the need to prevent the abuse,but also the need to ensure that it plays a real value and seeks the balance between corporate autonomy and the protection of the interests of the parent company shareholders.Its conditions of prosecution include the full holding conditions of the parent subsidiary,the conditions of the important subsidiary,the conditions of the litigants,and the conditions of the pre-procedure.As far as the full holding conditions of the parent and subsidiary company are concerned,the mother company must be wholly owned by the subsidiary or,although it does not meet the wholly-owned holding standard,there is sufficient evidence to prove that the parent company substantially controls the subsidiary.Substantive control requires that the parent company should have more than half of its shareholding and that the parent company occupies a dominant position in the subsidiary.As far as important subsidiary conditions are concerned,the assets of a subsidiary must account for one-tenth per cent of the total assets of the parent company or not one-tenth,but do have a real impact on the parent company.A single-weight shareholder representative action that has been filed before the exchange of shares and the transfer of shares does not have to re-identify the importance of the subsidiary.The point in time to determine whether a subsidiary is important should be a double standard when the act occurs and when the result of the damage occurs,as long as one of them is satisfied.As far as the conditions of litigants are concerned,the plaintiff must satisfy the requirement of shareholding period and proportion under the action of single weight representative.In the case of stock exchange and transfer of shares,the plaintiff's shareholding time is accumulated to 180 days.The accused includes both internal and subsidiary company personnel,as well as third persons outside the group.Its actions include both violations of the law and violations of the subsidiaries ' statutes,as well as other acts that cause damage to subsidiaries.The defendant's actions must have caused damage to the interests of both the parent and subsidiary companies.As far as the predecessor program is concerned,the parent company shareholders should request the supervisory Board of the subsidiary to sue first before exercising the dual representative right of action,and inform the parent company.The request period may continue to follow the 30 th provisions of the shareholder representative action.In case of emergency,an application may be made to the court to waive the pre-procedure.Considering that the development of shareholder representative litigation in China in 2005 is not perfect,and in order to reduce the impact of the new system,the author thinks that it is advisable to adopt judicial interpretation into the system of dual representative litigation of shareholders in our country at present.In this paper,the specific legislative proposals in the form of an annex presented at the end of the present text.