Shareholder Representative The Litigants System

On October 27, 2005, the new revised Company Law was adopted in the 18th meeting of the Tenth NPC Standing Committee, and a regulation that the shareholders are endowed with the right to prosecute in terms of a representative action was provided for in Article 152 therein, introducing the shareholder representative litigant system officially. The establishment of the system fills the blank in the legislation in China with respect to the above aspects, resulting in a positive and profound impact. However, in recent years, as can be seen from the judicial practice status of the shareholder representative litigation case in China, the regulation on the shareholder representative litigation is too principle to operate effectively, and there especially exist many defects in terms of the shareholder representative litigant. However, the litigant system is the basis of the shareholder representative system, whether the legal status of the litigant is arranged reasonably and rigorously is directly associated with the performance of the function of the shareholder representative litigation. Therefore, improvement on the shareholder representative litigant system is quite urgent and necessary.By comparing and researching, this paper compares and analyzes the legislation and judicial practice of two overseas legal systems on the shareholder representative litigant system, summarizes theories and analysis of the numerous scholars and experts in China, further reflects with deficiencies and shortcomings in the Chinese legislation, and makes practical analysis and discussion on the establishment of reasonable and viable shareholder representative litigant system in China, hoping for contributing over the improvement and development of shareholder representative litigant system in China. This paper is mainly discussed in the following four chapters.Chapter 1 Basic theory of the shareholder representative litigation system is analyzed and discussed. In Chapter 1, first of all, the concept, characteristics, origins and developments of the shareholder representative litigation system are introduced, and then comparison and analysis are made between the shareholder representative litigation and the direct litigation, at last, functions of the shareholder representative litigation system are mainly discussed.Chapter 2 The oversea shareholder representative litigant system are analyzed and discussed; and the following are particularly introduced: the right of the plaintiff in the oversea shareholder representative litigation system, the range of the defendant, the legal status of other shareholders and of the company, and the incentive measures and restriction measures on the litigation proceeded by the plaintiff shareholders.Chapter 3 The legislation and judicial practice of the shareholder representative litigant system in China are analyzed and discussed, comparison and analysis are made between the conditions of the Company Law before and after the amendment conducted in 2005, and deficiencies and shortcomings existed in the current shareholder representative litigant system are pointed out based on the fact that the establishment of the shareholder representative litigant system has made progress.Chapter 4 The significant sense and guiding principle of improvement on the shareholder representative litigant system are analyzed and discussed, and specific measurements are presented pertinently for improving deficiencies and shortcomings existed in the current shareholder representative litigant system in China.