On The Construction Of Shareholder Derivative Action System

The shareholder derives the lawsuit system is in the world the mainmarket economy country company law strengthening company governs thestructure, strengthens manages the level control to the company,finally protects the company and center a young shareholder rights andinterests most important system. It broke the traditional judicaturenot dryly to give the company the internal affair principle, thecompany independent legal person personality as well as companyinternal management business "the capital majority" the principleidea, this also was the modern company transforms by the generalmeeting of shareholders center principle to the board of directorscenter principle, the company operating right and the property rightsseparated, management level enormous expansion and so on trustee, thesystem which without the system when weighed frequently expiredgradually produces. Our country although officially established theshareholder in January 1, 2006 to derive the lawsuit system, but thefundamental research was not very mature, the corresponding necessarystipulation not yet stipulated that, inevitably gave the practiceoperation to bring many is inconvenient, therefore, the authorsuggested our country as soon as possible through the legislationestablishment corresponding derivation lawsuit system entity and theprocedure necessary stipulation. This article has utilized method andso on historical analysis, comparative analysis and legal principletheory of law analysis, has constructed a relative comparison systemtheory system, hoped in our country company stride development today,searches the best company in our country to govern the structure withhardship under the present situation, the author to the questionsolution which discovered proposed through this article from alreadythe viewpoint, causes this article to construct the shareholder in ourcountry to derive the lawsuit system corresponding necessary gaugefixed time, has the extremely valuable model function.This article altogether is divided four major parts.First chapter, the shareholder derives the lawsuit the elementarytheory. This part mainly elaborated the shareholder to derive thelawsuit the concept, the shareholder derives the lawsuit the originand the historical development, as well as the shareholder derived thelawsuit the legal principle theory of law origin. Second chapter, mainly elaborated the shareholder to derive thelawsuit with other lawsuits function differences, in other lawsuitsmainly aimed at with the shareholder derives the lawsuit and thesimilar relation direct lawsuit, the generation of position lawsuitand the representative lawsuit. To derives the lawsuit similar threekind of lawsuits with the shareholder to perform the functiondifference regarding to study and to construct the derivation lawsuitsystem to be extremely essential.Third chapter, through to various countries' and in the localderivation lawsuit system and so on English, American, Japanese, SouthKorean, Taiwan area case-law and sets up the legal regulation theresearch, To derives the lawsuit the main body important document(plaintiff's qualifications, other shareholders' rights and status,company's lawsuit qualifications and status, defendant's lawsuit mainbody), the derivation lawsuit other restrictive important documents(including pretage point of order, derivation lawsuit guarantee system), does nothave to withdraw a suit or the reconciliation without the courtagreement shareholder, the shareholder derives the lawsuit the benefitbalance mechanism (lawsuit expense to compensate mechanism,shareholder wins the after request power, shareholder lost a lawsuitthe comparative analysis which the after compensation), the derivationlawsuit system other questions (jurisdiction question, limitation ofaction question) carries on.Fourth chapter, is derives the lawsuit system about our countryshareholders the development and the existence practical significance,and "Company Law" establishes the shareholder after our country toderive the lawsuit system, not yet solves but urgently must solve thequestion legislation to suggest, after specifically included theplaintiff shareholder qualifications company's status, othershareholders' rights, the lawsuit expense charge standard, the lawsuitexpense guarantee, has not had arbitrarily to reconcile and towithdraw a suit the system, wins the plaintiff to compensate therequest power, the derivation lawsuit already sentences the strength,the jurisdiction nine aspects.