The Study On Proceeding Structure Of The Shareholders' Derivative Action

The shareholders'derivative action is established in many other countries and regions from the day on which it originated from the equity law of common law system. Before the new Company law of the People's Republic of China became effective in 2006, there were no provisions about the shareholders'derivative action in Chinese legislation. This legislative deficiency brought a lot of difficulties to the juridical practice in China. Being aware of its significance on protection of minority shareholders'interests, the shareholders'derivative action system was stipulated under the new company law.However, during the study on this system, people shall not ignore the facts that the shareholders'derivative action is a kind of form of action and its implement relies on the procedure regulations, which requires that corresponding modification shall be made in the civil procedure law, realizing the coordination between substantive law and procedure law.After the simple introduction of origination, development history and practical significance in Chapter 1, this paper tries to discuss the specific system and its theoretical support deeply under the proceeding regulations. Used the proceeding structure as principal line, the paper elaborates the reform of the shareholders'derivative action against traditional procedure law in the aspects such as the factors of proceeding structure and the idea of proceeding structure building. The factors of proceeding structure include both parties and courts. And the reform of them mainly means the expansion of the scope and the enhancement of the restriction of the parties. Can the traditional party theory interpret the particularity of the shareholders'derivative action? The answer will be found in the following content.The idea of proceeding structure building becomes special, at first, because the extremes of abuse and uselessness of this system exist. In order to prohibit the extremities from occurring, balancing the encouragement mechanism and defense mechanism by economic leverage is necessary when designing the proceeding structure. Otherwise, the conflict between the state judicial intervention and company autonomy also needs to be reconciled.Finally, the conclusion is made. It tells people that the transplantation of law needs overall perspective. If one can not see the wood for the tree, different departmental law may be not consistent.