Shareholder Derived Litigation Research

With the separation of ownership and management of modern company, shareholder’s derivative action plays a crucial role in balancing and protecting the interests of different stakeholders, and becomes one of the most important modern legal systems. As a system that is almost accepted by major countries in the two legal systems, it means a lot to the company’s governance, the regular operation of a company and the harmony inside a company. Since has been accepted by the Chinese "company law" and "securities law" too, it began to initially establish in China. But at the same time we must clearly recognize that this is just the first step, because of our shareholder derivative action established without institutional support, the effects remain to be the test. Therefore, how to perfect it and make it thrive in the soil of our legal system will be an urgent task.This article seeks to strike the balance between effective supervision, the protection of rights and the prevention of indiscriminate lawsuits. And under this guidance, to design Shareholder’s derivative action system, on the one hand, put forward some incentives, on the other hand to propose some restraining mechanisms to prevent abuse complaint. During the process of localization of shareholder’s derivative action, only pay attention to learn and absorb the outstanding legislation of other countries is not enough, drawing on the successful experience of Japan’s legal transplantation is another important element. Besides, the consideration of our actual situation is also necessary. Based on the existing legal system and Chinese litigation traditions, gradually improve our shareholder’s derivative action is a wise way.There are four chapters in total. The first chapter starts from the general theory of the shareholder’s derivative action. I discussed the meaning, the basic theory and the value of the system. The second chapter is the exploration and reflection of Chinese localization of shareholder’s derivative action system. By reviewing the history, I was trying to analysis of obstacles and practical problems in the localization process. In Chapter III I do the comparative investigation. Hoping offer some useful experiences, after trace back the development of shareholder’s derivative action in different countries; I summarized the experience and shortcomings of those countries. In the final chapter I put forward my reflection and recommendations of the system of shareholder’s derivative action. I believe that the system should be designed under the guidance of balance and base on the Chinese legal tradition. And then we have to perfect its system from the legal subject system, pre-procedure, action guarantees, incentives and other aspects.