Research On Shareholder Derivative Action In China

Market economy is developing.The scale of the company has gradually increased,the operation mode has become increasingly mature,and the separation of ownership and management rights of enterprises has become a trend and inevitable.At present,the management of a company is usually carried out by directors or senior management personnel.In order to achieve the improper behavior of controlling large shareholders and senior management personnel with increasing management rights,the existence of a shareholder derivative litigation system is extremely important.The new”Company Law,promulgated in 2005 formally established a shareholder derivative litigation system,but there are still many areas to be improved.This paper analyzes the status quo of China’s shareholder derivative litigation system,draws on the good mechanism of foreign countries,and puts forward suggestions for the perfection of shareholder lawsuits in China.This article is divided into four parts.The first part mainly introduces the basic concept,characteristics and historical evolution of the shareholder derivative litigation system,so as to distinguish the difference firom the general litigation,which is representative and subrogative.The second part analyzes the status quo and deficiencies of the system in China’s shareholder derivative litigation.In the party system,the plaintiffs shareholder qualifications are unreasonable,and the company’s litigation status is not clear;The constraint mechanism is mainly due to the shortcomings of the pre-procedures and the lack of malicious shareholders’ compensation liability.In the incentive mechanism,the main reason is that the litigation expenses are unreasonable.The third part also introduces the foreign shareholder derivative litigation system in terms of the party system,the restraint mechanism and the incentive mechanism.Through analyzing the foreign system,it can obtain corresponding enlightenment and reference.Finally,in the fourth part,the countermeasures for perfecting the shareholder’s derivative litigation system in China are put forward.To improve from three angles,first of all,in the party system,on the one hand,the qualifications of the plaintiff shareholders need to be changed.For example,taking the rules of shareholding at that time,reducing the time of holding shares,canceling the shareholding requirement,and clarifying the fairness of the plaintiff.On the other hand,it is clear that the company should be in a third party with no independent request in the lawsuit.Secondly,on the constraint mechanism,on the one hand,it is necessary to refine the provisions of the pre-procedure,such as canceling the unnecessary waiting period,clarifying the form and content of the request,and stipulating the relevant exceptions;on the other hand,the liability of the malicious shareholders should be clarified.Finally,on the incentive mechanism,on the one hand,it is necessary to re-establish the burden of litigation costs,collect litigation fees according to the standards of non-property cases,and increase the compensation mechanism for goodwill shareholders;on the other hand,the plaintiff should not be judged by whether the case wins or not.The compensation for expenses shall be determined by the plaintiff’s subjective goodwill and the necessity of litigation.