The Study Of Derivative Action

Derivative Action is that when a company's interests have been violated by it's major shareholders,directors,supervisors,managers and other controllers but the company can't file a lawsuit,for the company's interests shareholders who match the standards can file a suit in the name of the corporation.Derivative Action originated in the United Kingdom,developed in the United States and then was accepted by the civil law countries.Derivative Action is meaningful for the running of the corporation, the performance of the management's obligations and the protection for the medium and small shareholders.Chinese Company Law 2005 set Derivative Action at the first time and provide a clear legal basis for the protection for the medium and small shareholders.However,the legal rules are so simple and many other corresponding measures are lack that it is difficult to take advantage of Derivative Action.The article introduces the contents,the value basis and the factors should be consider in building a system of Derivative Action and analyzes Derivative Action in the United States,Germany and Japan.And then the article reads the law about Derivative Action,pointing out that the scope of Derivative Action in our country is too broad,the extension of "emergent situations" in Article 152 are unknown,the qualifications of the complaint are not flexible enough and many relevant systems are lack.The article suggests that(1) the scope of the the defendant should be limit at people who can control the companies,including directors,supervisors,senior managers,liquidators,and actual controllers;(2) the qualifications of the complaint from stock limited companies should be flexible.People who hold more than 300,000 yuan RMB or not less than 1%of all the issued shares can be a complaint;(3) the company not certainly be a party of Derivative Action.And in order to protect the company's intrests,rights must be gave to the company to decide whether it need to jion Derivative Action.(4)the extensions of "emergent situations" in Article 152 should be:①waiting for the legal time limit passed would result in irreparable loss;②directors,supervisors and senior management are all or mainly infringers;③directors, supervisors,senior management are controlled by infringers;④the wrong doing is an unlawful act;⑤directors,supervisors and senior management approveed the wrong doing.Besides,the termination of Derivative Action,the guarantee of Derivative Action,the conciliatory and nolle prosequi of Derivative Action,the derivative litigation termination of the proceedings of security,reconciliation and dropped the proceedings,the belonging of the outcome of the action and Business Judgement Rule are discussed on all sides in the article.