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Research On The CSISC–Driven Model Of Shareholder Derivative Suits In Public Corporations

Posted on:2021-03-26Degree:MasterType:Thesis
Country:ChinaCandidate:H C HouFull Text:PDF
GTID:2416330647953994Subject:Law and finance
Abstract/Summary:PDF Full Text Request
China formally introduced the shareholder derivative suit system into its Company Law of 2005.However,after more than ten years of judicial practice,shareholder derivative suit mechanism in China has not fully played its due role,one main performance is that few cases involving joint stock limited companies have occurred in judicial practice.China Securities Investor Services Center Co.,Ltd.(hereinafter referred to as the "CSISC")was officially established in 2013 with the promotion of the China Securities Regulatory Commission and started to carry out supportive actions in securities civil lawsuits.In December 2019,Paragraph 3,Article 94 of the newly revised Securities Law grants procedural convenience to CSISC for filing the shareholder derivative suits.Based on this background,this paper analyzes the advantages of the system and the direction of the related measures,so as to provide a reference for the practice and legislation of shareholder derivative suit in China.This paper first introduces the significance of shareholder derivative suit and the actuality of its implementation in China,and then points out that the protection of minority shareholders' rights and interests is not effective at present,and points out that the solutions proposed by the theoretical circle have great limitations so that it is difficult to solve the problems from the root or make the policy fall into place.Secondly,the thesis introduces the background,function orientation and operation status of CSISC,and analyzes the reasons for its current limited functions and the unique advantages of CSISC in its filing of shareholder derivative suits against listed companies.In combination with the legal provisions as newly amended to the Securities Law,We shall explore the legislative purpose of Article 94 and how to link up with the existing provisions such as Article 151 of the Company Law.Thirdly,this paper analyzes the unbalance of interests existing in the revised Securities Law and conceives the improvement path.The author holds the view that the provisions of the Company Law and the Securities Law at present do not establish a supporting mechanism to prevent abusive litigation,which is likely to disrupt the long-term business plans of the management of listed companies or even reduce the adverse consequences of securities market vitality.Therefore,it is necessary to establish the corresponding supporting mechanism while granting the right to file the shareholder derivative suit to CSISC.Finally,the paper analyzes the disputes over judicial application that may arise after the new Securities Law officially takes effect.Specifically include:(1)Whether the principle of non-retroactivity of law is applicable to the shareholder derivative suits filed by CSISC;(2)Whether the scope of defendants in the shareholder derivative suits filed by CSISC includes outgoing directors,supervisors and senior management or third parties other than directors,supervisors and senior management,controlling shareholders and actual controllers,(3)How to establish the procedural guarantee mechanism for shareholders not sued;and(4)The breakthrough of shareholder derivative suits initiated by CSISC against parent and subsidiary companies and the issues to be specified in the follow-up process.With respect to the above existing disputes,in combination with the opinions of foreign scholars within China and advanced legislative experience,we put forward some solutions that can be referred to in the course of legislation improvement in the future.
Keywords/Search Tags:Shareholder derivative suit, Non-profit organizations, Listed companies, CSISC, Protection of the rights and interests of small and medium shareholders
PDF Full Text Request
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