Study On The Types Of The Exemption Causes Of The Shareholder Derivative Action In The Limited Liability Company

Shareholder derivative action is a system in which a qualified shareholder derives an action from a derivative company in his own name when the company is not pursuing an object that harms the interests of the company.In order to balance the independence of the company’s legal person and the urgency of giving shareholders the right to protect the company’s interests,shareholder derivation action generally sets up a pre-procedure.In order to make shareholder derivative actions more flexible and avoid becoming a "dead system",exemptions from pre-procedures have gradually appeared in practice.In terms of legislation,the exemption of shareholder derivative action in our country can be classified as "urgent situation",but the meaning of the cause is ambiguous,the application is not clear,and it cannot cover the diverse situations of shareholder derivative action.In legislative terms,"urgent situation" is used as the sole reason for exemption from pre-procedure.The empirical analysis of the normative analysis of Article 151 of the Company Law and the sample ruling on the exemption of pre-procedures for shareholder derivative actions found that "urgent situation" as the cause of exemption does not simply refer to "urgency of time",but of "urgency of time" and The combination of the elements of "severe damage","significant deterioration of the situation",and "difficult to resolve through the company’s internal relief channels" is behind the failure of the company’s internal relief channels caused by the failure of the limited liability company’s governance mechanism.According to this,the essence of the exemption of the pre-procedure of shareholder derivative actions is the judicial intervention after the company’s internal remedy channel has expired,and the shareholder derivative company has been granted the right to seek external remedies,that is,the right to direct litigation,which has more explanatory power and has gained practical experience in adjudication support.The specific manifestations of the failure of the company’s internal remedy channels include the "urgent situation" in which the infringement of the company’s interests can’t be resolved in a timely manner,and the "request in vain" that the requested authority has lost the realistic possibility of accepting a lawsuit.Corresponding to this,there is also a dual pattern of "urgent situation" and "request for futility" in the cause of exemption from pre-procedure.Through type analysis,"urgent situation" mainly include "imminent acts are about to be or are being implemented","the company’s situation is facing significant deterioration",and "period elapsed" in refereeing practice;"request for futility" mainly exists in refereeing practice "The requested authority loses its independence" and "the requested authority cannot perform its duties" and other types."urgent situation" is the status quo of the only cause of exemption in legislation and does not conform to the reality of refereeing.However,due to the lack of legislative authorization,there is considerable uncertainty in the direct application of "request for futility" in refereeing.The facts were covered up in the referee.Through normative analysis and empirical research,it has been proved that the need to add "request for futility" as the cause of exemption from the pre-procedure of shareholder representative litigation has a practical need in China.Therefore,in order to cover all the situations where the internal relief channels of a limited liability company fail,China’s company law should build "dual" pattern of exemption from pre-procedures,juxtaposing"urgent situation" with "request for futility" to provide shareholders More effective remedies.