Study On Several Issues Of The System Of Shareholder Representative Litigation

Shareholder Representative Litigation, also named Shareholder Derivative Litigation, refers to a form of litigation which the shareholder brings an action against the infringe for the interests of corporation in his own name and the compensations gained from the suit belongs to the corporation or fails to invoke the right to suit which would exercise it. The system derived from the cases of England, and then developed in the U.S.A, and now has been spread widely in countries all of the world.As a genius creation in nations of Common Law, the system not only plays a significant role in solving the conflicts between shareholders'rights and right of operation and management, but also is useful in solving the interest conflict between majority shareholders and minority shareholders. There are only definite provisions on Shareholder Direct Litigation in Company Law of our country made in 1993. Fortunately, the system of Shareholder Representative Litigation has been definitely provided in section 152 in the new Company Law passed on Oct. 27th in 2005 and it has filled up the legislative blank in this aspect. However, we are sorry that some relevant provisions are too principle, adding our country's special nation conditions, this new-type system is impractical in our judicial practice. All the above problems provide some space for further study to author. The article mainly adopted comparative method,logical method and historical method to analyze the comparatively typical and perfect system of Shareholder Representative Litigation of foreign countries and meanwhile reflects on the shortage of legislation in our country, in order to make author's personal contribution to the establishment of the system of Shareholder Representative Litigation in China.This article is composed of three parts. The first part mainly sums up basic issue of the system of Shareholder Representative Litigation. This part starts from summarizing relevant concepts of this system, introduces origin and development of Shareholder Representative Litigation and probes into its practical significance. The second part is the introduction of operation of Shareholder Representative Litigation. This part mainly explores concrete systems of Shareholder Representative Litigation, such as system of parties, system of the demand rule, system of security for expenses in derivation action, system of the attribution to action results and so on, by comparing above-mentioned systems of other countries and areas. At the same time, author brings forth legislative suggestions on the relevant systems on the basis. The third part focuses on the localization of the system of Shareholder Representative Litigation. This part introduces legislative current situation and judicial practice of Shareholder Representative Litigation through historical method, and proposed author's opinions of perfecting the legislation from procedure angles, such as jurisdiction, course, court costs, prescription, effectiveness of judgment and so on, in order to improve practicability of the system of Shareholder Representative Litigation in our country.