| The shareholder representative action originated in the United Kingdom.In 2005,China's “Company Law” introduced the shareholder representative action system for the first time.This system provided a new institutional basis for the small and medium-sized shareholders to defend their rights,but from the promulgation to the present,China's economy has experienced high speed.In the ten years of development,the number of shareholder-sponsored action cases has continued to grow in recent years.The Chinese refereeing paper searched for the keyword“shareholder representative action”,from the number of single-digit cases issued in2005 to three digits per year in 2014.The case shows that shareholders' awareness of rights protection is gradually increasing.In particular,since the 18 th National Congress of the Communist Party of China,General Secretary Xi Jinping has repeatedly emphasized the protection of investors' rights and interests.The "Company Law Judicial Interpretation(4)" promulgated and implemented in 2017 and the "Company Law" Judiciary promulgated and implemented in 2019 Judicial Interpretation(5),twice focus on the protection of minority shareholders' rights and interests,and all involve the legal application of shareholder representative action.It can be seen that China attaches great importance to optimizing the business environment,strengthening corporate governance,safeguarding the interests ofminority shareholders,and promulgating judicial interpretation.It provides a strong judicial guarantee for the accurate application of the Company Law.Compared with the principled provisions at the time of initial promulgation,the explanations clarified some issues such as the litigation status of the company,the litigation cost commitment,and the vesting of the winning interests.However,in judicial practice,there are still many disputes and unclear procedural issues for the system.For example,the pre-procedure,the litigation status of other shareholders in the litigation,and the jurisdiction of the shareholder representative litigation,the gap in the system also gives the judge a certain discretion,but at the same time there are different referee standards,in order to safeguard the shareholders' equity.Strive for rights and interests,improve the internal governance structure of the company,and protect the investment enthusiasm of investors.The author will proceed from judicial practice,analyze and learn from the legislative experience of other countries,and explore the path of perfection of litigation procedures.The first part,the special system of shareholder representative action,has rich connotations including both the content of substantive rights and some systems of procedural law.The most notable feature is its subrogation and representativeness.Starting from the analysis of the system's inadequacy and practical difficulties,based on the nature of the problem,the academic controversy is used as a starting point to focus on the representative elements of representation and subrogation.The shareholder representative action system was established with the promulgation of the new company law in 2005.Although there was no written law before,the research and exploration of the academic community has always been involved.In recent years,along with the rapid development of China's economy,the various forms of economic activities of securities and companies have become more active,and shareholders' rights protection is no longer an individual phenomenon.The state is constantly breaking through the reforms at the legislative level and striving for a more optimized business environment.Starting from the typical cases before the promulgation of the shareholder representative action and the case retrieval after the promulgation,the current dilemma in judicial practice is analyzed,and the direction of institutionalimprovement is comprehensively analyzed.Combining with the status quo,the research on shareholder representative litigation is mainly based on the concept itself.The system gives shareholders this special right.The source of rights and the legal basis are the core of the discussion.The second part describes the institutional provisions for litigant qualifications.As a participant in the lawsuit,the parties play an important role in the system.Starting from the eligibility requirements of the original defendant of the shareholder representative action,the plaintiff is based on the substantive requirements and procedural requirements.The essential requirement is the shareholder's shareholding requirement.The procedural requirements are The duration requirement of a shareholding is that it must be held from the beginning of the misconduct to the end of the period.The regulations of each country are different according to the characteristics of judicial practice.The defendant is based on the scope of the subject and the scope of the object,mainly related to the meaning of the extension,which kind of subject and what kind of behavior caused the infringement of the company's interests,can be the defendant,so the extension of the extension of the offense is the scope of the subject and the classification of the behavior is the object The scope is the focus of research,conducting comparative analysis and research,and drawing recommendations for improvement of current legislation.Finally,the shareholder representative action has both subrogation and representativeness,and the subrogation refers to the company.Because the company is in the exercise of its original right to appeal,the shareholder directly replaces the company's right to appeal.Representative refers to other shareholders.The shareholders who filed the representative litigation filed a lawsuit on behalf of other shareholders for the misconduct of the relevant personnel against the interests of the company.The behavior represented the rights of other shareholders.Therefore,it is necessary to deeply understand the shareholder representative action system,study the litigation status of the company and other shareholders,and comprehensively analyze the qualifications of the parties to draw legislative advice.The third part is about the pre-procedure of shareholder representative action.The purpose of setting up the pre-procedure is to go through the company's internal relief procedures before the shareholder initiates a representative action,and only allow judicial intervention if the internal governance of the company is still ineffective,to avoid causing excessive litigation burden.Because of the subrogation of the shareholder representative action itself,the plaintiff must not only meet the above requirements,but also perform the pre-procedure in accordance with the law.The pre-procedure means that the qualified shareholders,when the company encounters rights and interests,submit a written request to the company's board of directors,supervisors,board of supervisors,executive directors and other corporate governance agencies to file a lawsuit.If the company makes a decision to refuse to perform or fails to respond,more than The waiting period is considered as the completion of the pre-program.Under the shareholder representative action system,the shareholders who filed the representative action court will review their litigation requirements.Due to the lack of requirements,especially the lack of pre-procedures,the dismissal is not a minority,but they are all based on the civil procedure law.Review of authority.There is a special case here.In the United States,the representative lawsuit can be dismissed according to commercial principles.That is,the court,based on the application of the company's agency,conducts litigation review from the perspective of the company's interests,and has the right to reject the representative's representative claim in accordance with the application.Although there is no such system in our country,we can also give some inspiration to our judicial practice.In the judicial practice of our country,the case of dismissing the lawsuit on the grounds of lack of pre-procedures is not a minority.However,the Company Law lacks clear practical regulations for the specific implementation of the pre-procedure.This part focuses on the setting of the pre-procedure.Procedural rules,as well as the application of the judicial review process and its feasibility in China.The fourth part is about the special procedures of shareholder representative action.In the special litigation form of shareholder representative action,in addition to the special procedures mentioned above,there are also many proprietary features and special provisions in the general litigation procedures.Of course,there aretheoretical and practical disputes to be determined.According to the provisions of the Civil Procedure Law,when the plaintiff files a lawsuit,it is required to pay the lawsuit fee according to the regulations.According to the different types of cases,the fees paid are also different,that is,the case acceptance fee.However,as a special litigation method,the shareholder representative action has a relatively high amount of litigation,and the plaintiff's shareholders are relatively weak.It is necessary to formulate a special system according to its characteristics to ensure the shareholders' effective rights and avoid causing the victory,but The high cost of litigation,but the economic losses are not worth the loss,leading to the exclusion of the representative litigation system.Therefore,Japan and the United States have adopted some proprietary systems for the litigation of shareholder representative action.These experiences can give us some inspiration.The burden of proof is the responsibility of the parties to issue a certificate to the court in respect of the rights dispute.The status in the entire lawsuit is self-evident and dominates the direction of the case.In a general civil case,the principle of “who advocates and who gives evidence” is enforced,and the plaintiff who files the lawsuit bears the burden of proof.The shareholder representative action is also a category of civil cases.The principle of claiming evidence is applied in accordance with the provisions of the Civil Procedure Law of China.However,because the plaintiff in the shareholder representative action has its particularity,the academic community has disputes over whether to redistribute according to the general principle or the burden of proof.The first issue encountered in filing a shareholder representative's lawsuit is jurisdiction,and which court the shareholders should file.Shareholder representative litigation because of the large number of parties involved and the complex relationship,if the general principles of the Civil Procedure Law are simply applied,it will be unfair.How to balance the interests of all parties and construct a scientific and reasonable jurisdiction system is worthy of study and discussion.This chapter discusses the three aspects of litigation costs and guarantees,burden of proof,and jurisdiction.The fifth part discusses the litigation results of shareholder representative action.Shareholders' representative action faces various possible outcomes.Winning,losing,mediating and withdrawing litigation,the particularity of litigation,and the complexity of related parties' relationships have led to differences in the processing results and disposal methods between shareholder representative action and general civil litigation.Therefore,it is necessary to conduct an in-depth analysis.After the shareholder representative action is filed,the winning interest belongs to the company,and the reasonable expenses paid by the plaintiff's shareholders in the early stage will also be compensated.This is clearly clarified in China's "Just Law Judicial Interpretation(4)".In the judicial practice,there are many possibilities for winning the case,and the composition of the shareholders themselves is different.The brief provision of a sentence in the judicial interpretation cannot completely solve the complicated relationship of shareholders' rights in reality and analyze it around the specific situation.After the shareholder representative lawsuit was filed,once the case was lost,the company and the directors,senior management personnel and other defendants were adversely affected,directly interfering with the normal operation of the company,especially if the plaintiff shareholders had subjective malice,and the company and the defendant were required to bear Liability for compensation,that is,the compensation mechanism for shareholders to lose the case.Mediation is a common dispute resolution method in civil litigation.The parties can voluntarily and express their true meaning to reach a mediation agreement on the dispute,which not only saves litigation resources but also embody the principle of autonomy of civil law.Therefore,it is applicable in general civil litigation.Generally speaking,mediation is generally called reconciliation in foreign countries.Shareholder representative action should be applied as a civil lawsuit.Similarly,because the subrogation determines that the plaintiff is exercising the right to appeal on behalf of the company,it is the right to dispose of the procedural rights without substantive rights.Therefore,how to apply mediation and explore the shareholder representatives.How to apply mediation and related system and process rules under the litigation system.Withdrawal of a complaint means that the plaintiff has requested the withdrawal of the lawsuit before the court has accepted the case,and the court has ruled that the withdrawal is allowed and the proceedings are terminated.This is a general case of civil procedure law,butbased on the particularity of the shareholder representative litigation itself,there is a different interest relationship than the general civil case,so special rules should also be made for its characteristics. |
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