A Research On Double Derivative Suit

The current company law of our country has a shareholder derivative suit system.Under this system,the shareholder can bring a lawsuit in his own name for the benefit of the company.With the increasing number of group companies in our country,there are more and more holding companies.The current shareholder derivative suit system of our country cannot pursue the responsibility of the subject who infringes the interests of the subsidiary company through the shareholder derivative suit system,so the existing system cannot provide effective relief for the shareholders of the parent company in this situation.However,in the judicial practice,there have been many cases that can not be solved by the single derivative suit system.Because the parent company can not sue on behalf of the subsidiary company,such cases can only be dismissed on the basis of the subject's discomfort.The parent company is closely related to the interests of the subsidiary company,which indirectly affects the shareholders of the parent company.If the subsidiary company has the main body to investigate the responsibility of the person who infringes the interests of the company and is lazy in exercising the right of action,the parent company itself does not file the shareholder representative action,and the shareholders of the parent company have no other effective remedy for their own and the company's losses,which is unfair to the shareholders of the parent company.Therefore,it is necessary to introduce the shareholder double derivative suit system to make up for the situation that the existing shareholder derivative suit cannot be solved.The double derivative suit has been a relatively mature system outside the country.The United States,Japan and South Korea have all confirmed the double derivative suit system.The experience outside the country is worth learning when building this system in our country,but at the same time,we should also consider the actual situation of our country,which is not in conflict with the existing legal system of our country,so as to achieve the integration.This paper is divided into four chapters.In the first chapter,the concept and theory of double derivative suit are summarized.The double derivative suit system refers to the system in which the interests of the subsidiary are infringed illegally and the subject who has the obligation to sue is lazy or refuses to exercise the right of claim,and the shareholders of the parent company file a lawsuit for the interests of the subsidiary in their own name,which originated from the common law system.The related theories mainly include the theory of piercing the corporate veil,the theory of shareholders' rights crossing and the theory of litigation.At the same time,the first chapter,through the summary of the cases in practice,demonstrates the need of establishing double derivative suit in the judicial practice of our country.The second chapter discusses the elements of shareholding in double derivative suit,including the shareholding of parent company to subsidiary company and the shareholding of parent company to parent company.The viewpoint of this paper is as follows: for the shareholding standard of parent company to subsidiary company,the revised absolute shareholding standard is adopted in this paper.On this basis,the exceptional condition that the defendant adduces evidence is added: if it can be proved that the parent company does not form a control relationship with subsidiary company,the exception is the shareholding period and shareholding of parent company's shareholders to the parent company Proportion,in order to effectively connect with the existing system of our country,we should adopt the standard mode of the existing shareholder derivative suit,there is no requirement of holding period and proportion;for the joint stock limited company,there is no requirement of holding company individually or jointly for more than 180 consecutive days More than 1% of the shareholders have the right to file a lawsuit,and they are all shareholders of the parent company during the whole lawsuit period.The third chapter discusses the importance of the subsidiary in the double representative action.This paper suggests that in the double derivative suit,the subsidiary company should be restricted to be an important subsidiary company,and the standard of judging the important subsidiary company should be the same as that in the current practice in China,that is,the proportion of the influence of the net profit or investment income from the subsidiary company on the net profit of the parent company should be determined.The fourth chapter discusses the pre procedural elements of double derivative suit.In order to ensure the necessity and sufficiency of double subrogation,it is necessary to ensure that the available remedies have been exhausted,but at the same time,it is also necessary to ensure that the shareholders of the parent company will not be subject to too complex pre procedural constraints in double derivative suit.This paper holds that in the double derivative suit,the pre-processing method is that the shareholders of the parent company directly request the subsidiary company.