| With the economic development and foreign exchange,the business model of group companies represented by parent and subsidiary companies is gradually rising.However,due to the lack of a clear legal system in China to support the parent company’s shareholders to file double derivative suit,in practice,many shareholders of the parent company are rejected because they do not meet the requirements of the plaintiff’s qualification.It is necessary to study the double derivative suit.Starting from the concept of double derivative suit,this paper analyzes and compares the theoretical basis and the actual environment in China,and proves that China really needs to introduce this system.And learning the experience of U.S.and Japan,in combination with our country law,it makes a more reasonable system design of the double derivative suit in our country.The first part is an overview of the double derivative suit,introduces its connotation and characteristics,and analysis with the shareholder derivative litigation,comparison of the difference between this system and the original system,obtains the uniqueness of the double derivative suit.The next part shows double derivative suit is necessary and feasible in our country,and points out that although the judicial interpretation of our country has not introduced the system,it does not mean that is not suitable for introducing into China.On the basis of analyzing the supporting theory and opposing theory,summarizes the comprehensive theory which can support the system.This paper demonstrates the feasibility of designing this system in China.And the defects in China’s judicial practice,as well as the insufficient protection of the existing system and the comparative analysis of the role of the double derivative suit.This system can solve our country’s problems.The third part takes the United States and Japan as the representatives,introduces the foreign experience and focuses on the analysis of the system situation,applicable conditions,the scope of the plaintiff and the defendant,pre procedure and other main contents of the two countries.Summarizes the system characteristics and experience of the two countries,which provides a useful reference for the system design of our country.The fourth part is to explore the design the double derivative suit in China.Firstly,analyzes the applicable conditions the double derivative suit in China,and holds that adopting the mode of full holding parent subsidiary company to avoid the risk,while there are no more restrictions on the types of subsidiary companies.On the litigant,analyzes the holding time and proportion required by the shareholders of the parent company,as well as various types of defendants that may damage the interests of the subsidiary company.It is most appropriate for the company to adopt the third party status without independent claim.It is finally considered that the parent subsidiary company should bring up the scheme at the same time,and the prepositional procedure exemption is also made for exceptional cases.In the aspect of litigation guarantee and mediation.It is necessary to investigate the application of guarantee according to the situation.In order not to damage the interests of all parties necessary to strictly review the content of mediation and inform all parties of the content. |
