The Research Of Double Derivative Suit System In China

With the development of the modern economy,the form of enterprises has become more and more complex.The establishment of the "Company Law" was initially based on a single company form,which made it difficult to adapt to the current economic environment and corporate group structure.One of the most typical is the shareholder derivative suit system.In the form of a three-dimensional enterprise group,the number of parent-subsidiary companies is increasing,and the relationship is getting closer and closer,which means that the damage to the subsidiary company will also affect the interests of the parent company and its shareholders.The double shareholder derivative suit system is a system where the parent company exercises the right to sue when the subsidiary is infringed by directors,supervisors,senior managers or a third party,and the subsidiary itself cannot sue.The introduction of the double shareholder derivative suit system can not only better protect the interests of parent-subsidiary companies and their shareholders,but also promote the optimization of the internal governance structure of enterprise groups.The remainder of this paper is organized as follows: the current status of China's legislative and judicial fields,the difficulties of remedies in the current legal system,the development and status of legal systems in other countries,the characteristics of different systems,the necessityof introducing a double shareholder derivative suit system,and puts forward specific Suggestions on the construction of the system.In the first part briefly describes the deficiencies of Chinese laws on the regulation of three-dimensional enterprise groups.In terms of legislation,there is still a gap in the double shareholder derivative suit system in China,and there is still a lack of regulation on the protection of the interests of minority shareholders in three-dimensional enterprise groups.In judicial practice,different judgments have been made in the same case.The attitude of the local courts to the parent company's representative lawsuit is different,while the supreme people's court is also uncertain.Then,this paper explores other ways to solve the problem by introducing the latest cases of the supreme people's court.This includes shareholder representative litigation brought by the shareholders of the parent company,the shareholders of the parent company holding an interim meeting to require the parent company to bring shareholder representative litigation,the investigation of the liability of the directors of the parent company for violating the duty of loyalty and care,and the denial of the corporate personality of the subsidiary.However,none of these methods can solve the problem quickly and effectively,due to the difficulty in proving evidence,the high time cost and the difficulty in making up for the loss.The second part introduces the development and current situation of the double shareholder derivative suit system in the United States and Japan,and replaces the background of cases with that of other countries to understand the handling methods of laws in other countries u replaces the background of the case to other countries and understands how the laws of other countries are handled in the same situation.This provides a reference for China's system construction.Then,this paper analyzes the characteristics of the double shareholder derivative suit system in the United States and Japan,deepen the understanding of the legal system of other countries.The premise of the double shareholder derivative suit system in the United States is that the parent company's board of directors recognizes the full ownership of the subsidiary company.The establishment of this systemstimulated the parent company's board to better play its role in group governance.On the other hand,the premise of the double shareholder derivative suit system in Japan is that,even in the control relationship,the subsidiary is recognized to have certain independence,and the double shareholder derivative suit system is a supplementary means when the board cannot supervise and manage the subsidiary.Finally,this paper demonstrates the practical necessity of the double shareholder derivative suit system from the perspective of jurisprudence,and the possible benefits.The introduction can not only integrate the traditional legal person theory with reality,but also conforms to China's national conditions and is conducive to Encourage subsidiaries to increase business autonomy and promote organizational innovation.In the third part,combined with the provisions of China's shareholder derivative suit system,compared with the US and Japan's legal systems,it puts forward suggestions for the construction of a double shareholder derivative suit system,which includes the parent-subsidiary relationship,the size of the subsidiary,the qualifications of the plaintiff of the shareholders of the parent company,the scope of the defendant,the damages and the pre-procedures,and thus designed a set of legal system which not only conforms to the reality of our country,but also can be integrated with the current company law.