Research On Double Derivative Suit

In accordance with the relevant provisions of the current “Company Law” on shareholder derivative suit,in order to safeguard the legitimate rights and interests of shareholders and the company,allowing shareholders to subrogate the company in their own name,promptly file a lawsuit against the wrongdoer,effectively protecting the company's shareholders.Especially the interests of the majority of small and medium shareholders.However,with the development of the corporate form of the parent-subsidiary structure in China,the shareholder derivative suit system based on a single company inevitably has obstacles in the application of law,which indirectly affects the interests of subsidiaries.In the interests of the company and the shareholders of the parent company,the existing subrogation lawsuit cannot provide timely and effective assistance and relief to the shareholders of the parent company.In 2016,“Company Law Interpretation(4)(Draft for Comment)” attempted to introduce a double shareholder derivative suit system,but in the official provisions issued in 2017,the relevant provisions were deleted.Precisely because of the swing of this legislative attitude,It has aroused widespread concern and controversy about the system by scholars of theory and practice.At the same time that we reflect on the inadequacy of the system,many countries(regions)in the world have already taken the lead.For example,the United States and Japan have successively established double shareholder derivative suit through precedents or legislation,and are still developing and perfecting the system.In the face of this kind of judicial dilemma,it is necessary for China to learn from the successful experience outside the region,carefully evaluate the necessity of introducing the double shareholder derivative suit system,and further study the introduction of the system to explore the integration of the system with China's socialist legal system.important question.This paper has five chapters.Under the predicament of demonstrating the existence of relief under the existing law,the company has deeply analyzed the system vacancy and theoretical conflict of China's double shareholder derivative suit,and then demonstrated that China must introduce the system.Improve the existing legal system,and finally carry out the important issues in the construction of this system under the trend of the continuous development of the legal system of social subjects with Chinese characteristics and the continuous improvement of the modern corporate governance model.Chapter 1 is about the overview of China's double shareholder derivative suit.On the one hand,starting from the current situation of shareholder derivative suit,the typical case of "Qiao Jun v.Wang Youbin case" is the entry point of the problem,pointing out that the existing shareholder derivative suit system is based on the organizational form of a single enterprise,and the current market economy development has made the parent company or group company an important organizational form of market operators.When the interests of the subsidiaries are infringed by their directors,supervisors or senior management personnel and the shareholders and parent companies of the subsidiaries are in a position to exercise the right of subrogation,and even the substantive rights of the parent and subsidiary may be controlled by a major shareholder,Some ordinary shareholder derivative suit systems are difficult to provide sufficient relief for the parent company's shareholders,and it is difficult to protect the legal property of the parent company and the sufficient asset distribution rights of the parent company shareholders.On the other hand,in order to solve the problems in the current status of the implementation of shareholder derivative suit,introducing the concept of the double-shareholder derivative suit system from different definitions of the concept of different scholars at home and abroad and starting from the three most important basic theories of double shareholder derivative suit,the most basic and core related content of the theory is introduced.Chapter 2 is about the necessity of introducing the double shareholder derivative suit system.In order to make up for the shortcomings of the previous literature results for the double shareholder derivative suit system and the single arguments,this paper will analyze the positive and negative aspects separately,in order to more comprehensive and prudent the necessity of introducing the system.analysis.On the one hand,from the perspective of positive argumentation,this paper proposes the introduction value of double shareholder derivative suit,including the drawbacks of narrowing the plaintiff's scope when the existing shareholder derivative suit is applicable,making up for the lack of protection measures for the minority shareholders' rights and interests of the parent company,and satisfying the perfect company governance mechanism.On the other hand,from the perspective of the opposite argument,some opinions about the introduction of the system are refuted,including the rebuttal of the “existing remedies are sufficient to solve the problem” and the “violation”of the two parts of the refusal of the principle of ownership in the same period.Therefore,in the current stage of development in our country,there is no reasonable reason to hinder the introduction of the system in our country.Chapter 3 mainly discusses the applicable conditions of the double shareholder derivative suit system.At the current stage,China's legal provisions do not give authoritative definition methods and qualification conditions for the concept of parent-subsidiary companies.Therefore,this paper can only synthesize the existing standard judgment methods on the essential characteristics of the parent-subsidiary company,namely the “control” level.The four criteria of “full-funded holding”,“full holding”,“absolute holding” and “actual holding” were analyzed,and finally the “full holding” standard was most suitable as the parent company's consideration for the holding of subsidiaries.In addition,the article pointed out that the subsidiary should be an important subsidiary.Because the close relationship between the non-essential subsidiaries and the parent company's interests is not very strong,the losses suffered by the subsidiaries have little impact on the parent company,and the directors of the less important subsidiaries have lower levels within the group,and it is impossible for the parent company to appear.It is in the situation of exercising the right of action.Chapter 4 introduces the litigation subject of the double shareholder derivative suit system.The article first clarified that the plaintiff has the qualifications of the parent company's shareholders and has a stake in the lawsuit,which is the premise of being a plaintiff.Then,this paper makes a distinction between the general situation and special circumstances of the double shareholder derivative suit,and proposes the general rules and flexible rules of the plaintiff in terms of shareholding period and shareholding ratio for different situations.Subsequently,the scope of the eligible defendant is discussed.It should include not only the general subjects such as directors and supervisors of important subsidiaries,but also the other people who can exert decisive control over the management of the company from the perspective of the fundamental attribution of substantive rights.Among the defendants' scope,if the person who does not actually control the company and the company's directors,senior executives and other internal personnel jointly infringe the interests of the subsidiary,then such subjects should also be included in the scope of the defendant.Chapter 5 puts forward the necessity of setting up the pre-procedure procedure in the double shareholder derivative suit system,and designs the specific content of the pre-procedure.The pre-procedure should originate from the principle of the original derivation of the right and the exhaustion of the company's internal relief requirements.Due to the particularity of the two-tier company structure,there are two legal entities,so the design of the pre-procedure needs to be considered in the order of filing a lawsuit request with the parent company and how to properly allocate the entire pre-program.Through the inductive analysis of the four viewpoints in the theoretical circle,the article considers that the "one-way lifting and notification" model is the most superior.It is suggested that China's pre-procedures should adopt this model.