Research On The Pre Procedure Of Shareholder Representative Litigation In China

Shareholder representative action is a kind of litigation system when the legitimate rights and interests of the company are subject to illegal infringement whereas the company is remiss of the prosecution,shareholders of the company could bring the lawsuit in their own name and the compensation attained will be attributed to the company.At present,majority of the countries in the world have this system in the company law,regarding which as the "umbrella of justice" for the rights and interests of shareholders.When the Company Law was under revision in 2005,this system was for the first time introduced into China's laws.According to the actual situation in recent years,on one hand,this system has protected the rights and interests of small and medium-sized shareholders to the maximum extent and on the other hand,prone to be misused by some shareholders,which has interfered with the normal operation of enterprises,sometimes even infringed the development interests of enterprises.The demand requirement of shareholder representative action is also called exhaustion of intra corporate remedies.as the balance of the relationship between the enterprise and the shareholders and the proper restriction over shareholder representative action could avoid the interference and infringement of the company's independent operation right in consequence of too many shareholder representative actions.This paper makes an overall analysis through literature research,comparative research and empirical research.Firstly,it briefly expounds the connotation of shareholder representative litigation as well as the demand requirement and meanwhile,analyzes the operation status of the demand requirement of shareholder representative action in China from both the theoretical and practical aspects.On this basis,it compares the experience and practice of foreign laws and the development process of China's market economy,and puts forward suggestions to improve the demand requirement of shareholder representative action continuously in China in different stages.In the introduction,the main problems of this paper are introduced,including the significance,background and innovation of the research.The conclusion part mainly summarizes the whole article and the main topics.In addition to the above,the paper can be divided into four parts.The first part is the overall introduction of shareholder representative litigation and its pre procedure.In this part,firstly,it introduces the connotation of shareholder's representative litigation system in the form of cases.At the same time,from the perspective of four levels,it fully discusses the pre procedure of shareholder's representative litigation,laying the foundation for the later analysis and elaboration.The second part mainly analyzes the current situation of pre proceeding of shareholder's representative action in our country.First of all,it discusses the existing legal provisions of the pre proceeding from the theoretical level,especially analyzes the problems existing in the aspects of the applicant,the respondent and the application object,the form and content of the application,the burden of proof and the obligation of notification,and the exemption of the pre proceeding.On this basis,it analyzes the current situation of the judicial application of shareholder's representative litigation in China from the practical level,points out the shortcomings and problems of the existing provisions of the pre procedure,and makes clear the direction for improving the pre procedure system of shareholder's representative litigation in China.The third part focuses on the analysis of the current situation of the pre procedural provisions in the extraterritorial law.Starting from the relevant laws of the United States,Germany,Japan and Taiwan region of China,it introduces the system provisions of different legal systems and different countries and regions.In this part,it mainly makes a comparative study from the application subject,application form and application content,application organ setting,exemption situation,etc.through the exploration of the relevant provisions of different countries and regions,it provides more experience and Practice for the further improvement of the system of pre-processing in China.In the fourth part,the author puts forward some suggestions to improve the pre litigation procedure of shareholder representative litigation in China.Based on the previous analysis,the author puts forward four principles to improve the pre procedural system.At the same time,the author points out that the pre procedural system of shareholder's representative litigation should be constructed according to the development of the market economy system.