Research On The Plaintiff Qualification Of Shareholder's Derivative Action

As an important system in the company law,shareholder's derivative action aims to provide a legal way for minority shareholders who lack the right of speech and control in the company to protect the company's and shareholders' legitimate interests when the company is wrongfully infringed by the controller or others.While the system plays a positive role,the company law of all countries has set the threshold of entry for it,so as to block the malicious person and the person who abuses the legal way beyond the threshold.And there is no exception for the company law of China.This paper focuses on the provisions on the qualification of the plaintiff in shareholder's derivative action in China,and discusses its rationality and limitations,as well as its proper application in judicial practice.This paper first discusses the definition of shareholder derivative action,which distinguishes it from other similar litigation systems.Then,the author discusses the qualification of the plaintiff within the limitation of the shareholder's derivative lawsuit,determines the necessity of the shareholder identity in the lawsuit,and explains why the limitation of the plaintiff qualification has become the universal choice in every country.The author investigates the legislation and legal precedents of the United States,the United Kingdom,Japan and so on.I Combine the theories and views of domestic and foreign experts and scholars,and draw on the feasible ways and means,to provide guidance for the problems in China's judicial practice.Then,the author analyzed the judgments published on the Internet,and checked the defendant's opinion and the courts'methods of determination about the plaintiff s qualification in the trial practice of our country.And it is found that the standard of the qualification of the plaintiff is not uniform because of the broad legal provisions through analyzing the contradictory judgment opinions of different courts.Finally,the author has summarized and integrated the common problems existing in China,such as the qualification of dormant shareholders,nominal shareholders,imitated shareholders,and the plaintiff who borrowed other shareholder's qualification,the plaintiff also has a dual identity of shareholders,and supervisors,the situation when the register in company is different form the one in registration authority,or other situations that the stock ownership is in uncertain state,the shareholder's derivative action with combination or separation in a company,and the problem of litigation right of shareholders with capital contribution flaw and the convertible bond holder,and so on.And the above problems are pointed out respectively corresponding solutions,to make the judicial organ reach a reasonable and unified standard.At the same time,the author evaluated the different regulations of limited company and joint stock company on the basis of our existing legislation.And some suggestions are put forward for perfecting the legislation of plaintiff qualification of joint stock company,while approving the positive function of our existing legislation,such as releasing the limitation of stock holding time for shareholders who have held stock when the wrong behavior was happening,and setting different shareholding ratios for listed companies,large joint stock companies,and other common joint stock companies.