On The Exemption Rules Of The Pre-procedure For Shareholder Representative Litigatio

Shareholder representative litigation,as a special litigation form,is conducive to protecting the legitimate rights and interests of minority shareholders and maintaining the normal operation of corporate governance mechanism.Because the shareholder representative lawsuit ignores the company's independent personality as a legal person and denies the principle of capital majority rule to some extent,the pre-procedure is set up in order to balance the contradiction between the company's independent status and judicial participation in corporate governance.However,too strict and mechanical requirements of the company shareholders to perform the pre-procedure,it is likely to greatly weaken the actual value of the shareholder representative litigation system.Therefore,when establishing the prepositive procedure,the legislation of each country also makes the corresponding exception,that is,the exemption rule of the prepositive procedure.There is only one kind of exemption rule in the company law of China--"emergency",which ignores the complexity and diversity of company practice.At the same time,the provisions of"emergency situation" are relatively general and vague,without specifying specific applicable standards.On the basis of empirical research,through the analysis of the thinking on the typed the "emergency" can save case,mainly divided into three kinds of situations:the first is an objective not shareholders to perform the preceding procedure,which includes a company s governance structure is not perfect,management confusion and company dissolution is not set up a group of three;The second is the situation where the shareholder's performance of the preposition procedure is meaningless,which also covers three situations:the directors and supervisors of the company are all defendants,and the defendants actually control the company and the plaintiff have dual identities of shareholders and supervisors.And the third is the other case.The three non-emergency exemptions are based on the core spirit of "exhaust the company's internal relief principle" to exempt shareholders from the obligation to perform the pre-procedure.At the same time,typed analysis about "emergency"standard,mainly around the damage to the company's action is about to happen,damage the company's action in a constant state,legal limits and within the company cannot achieve relief during four aspects to carry out,in the practice of "emergency"standard is mainly focused on the urgency of the timing and loss is difficult to remedy.On the basis of empirical analysis and theoretical research,three clauses should be added to the exemption rules of shareholder representative litigation prepositive procedure in China,which are:the exemption of impossibility of performance prepositive procedure objectively,the exemption of meaninglessness of performance prepositive procedure and the exemption under other circumstances.For the"emergency",the applicable standard should focus on the urgency of judging the time,including the time limit for the occurrence,the occurrence and the maintenance of the company's interests of the violation of the company's interests;In case the loss is difficult to recover,the possibility and difficulty of recovery should be considered,and the unexpected loss should be loosely identified as difficult to recover.