Study On Double Derivative Litigation

In order to integrate into the globalization wave of the shareholder representative litigation system,in the revision of the company law in 2005,China introduced the system in the form of legislation as a fault insurance mechanism in corporate governance.However,in the current and increasingly cumbersome market environment,special organizational forms such as group companies and parent-child companies have emerged,posing challenges to shareholder representative litigation based on unitary systems.To make up for the short-term existing system,the United States and Japan timely proposed the establishment of a double derivative litigation system.In the face of a new system,the primary task is to respond to its legitimacy and necessity,and the second is to the question of how to construct at the technical level.First of all,based on the diversification of the company's organizational form and the reality of conflicts of interest between the parent and the size of the shareholders,the origin of the system was introduced.Comparing the system with similar systems,it is concluded that the system also has the dual functions of compensation and deterrence,seeking the rationality of the existence of the system from a practical perspective.Then,the existing affirmation and refutation of the system are analyzed and criticized one by one.The single theory is not enough to clarify the legitimacy of the system.However,it can fully reveal the theory of the ultimate damage theory and the procedural lawsuit.Secondly,starting from the analysis of legislative exploration and judicial practice,the necessity of establishing the system is explained by the blank of the legislation,so that there is no clear basis for the referee,because different judges have different subjective considerations in the referee.There has been a phenomenon of different judgments in the same case.However,there are omissions in both the supported judgments and the denied judgments.By enlarging the interpretation of Article 151 of the Company Law,it is affirmed that the double litigation is suspected of making a law,directly in the law.The innocent dismissal of the lawsuit is too rigid.This reflects the necessity of establishing a dual litigation system.The introduction and enlightenment of extraterritorial experience laid the foundation for the localized institutional design in China.Finally,this paper lies in the construction of the system,which consists of three parts: the prerequisites,the main elements and the procedural requirements.Regarding the prerequisites,the relationship between the parent and subsidiary companies and the damage of the interests are mainly limited.This paper believes that the parent and subsidiary companies should be fully controlled,and the damage of the subsidiaries needs to be transmitted to the parent company.The main elements include the requesting subject and the responsible subject.Regarding the requesting subject,there is no need to make special provisions on the shareholding ratio,but in the holding period,the time period standard is adopted for regulation,but in the case of share exchange and share transfer,the shareholding is diluted.Regarding the subject of responsibility,this paper believes that it should be restricted to the senior executives of the subsidiaries and the third party who has an impact on the company's decision-making.With regard to the pre-procedure,the method of making a request to the subsidiary and notifying the parent company should be adopted,and the application of the pre-procedure is waived in the case of “voting for futile” and “emergency”.