| Since 2005, our country "company law" established the shareholder representative litigation system, the shareholder representative action has caused the attention of the academia and judicial circle, a variety of research article about how to encourage shareholder to use this right is countless,but this article is to discuss how to regulate amusement of shareholder representative litigation, this article is not opposed to encourage shareholder representative litigation, after all, the shareholder representative litigation is beneficial to the balance between the interests of shareholders with the company. Inevitablely,after establishing the system of shareholder representative litigation,the more important thing is how to limit the rampant litigation, regulate rampant litigation, because the shareholder representative litigation, as a specific system, must be able to be in the legislation of neutrality and forward-looking legislation, just because at present the quality of our country shareholder representative litigation is just a little, the enthusiasm of the shareholders’ shareholder representative litigation is not high or hot that is not the cause of not limiting the right. until appearing a lot of abuse of shareholder representative litigation, formulating regulations to limit the misuse of shareholder representative litigation is too late. Our country "company law" provisions on shareholder representative litigation is too simple, the form of company decision has no real deterrent effectiveness to the action, although the company law of the fourth explainment(draft) notices the shareholder representative litigation is likely to be abused, and suggests to establish the guarantee system of shareholder representative litigation costs, litigation mediation system, but it still has some unreasonable design terms, learning lessons from foreign advanced legislative experience and judicial precedent, combining with the actual situation of our country, at the same time around the company law and the company law of the fourth explainment(draft) restrictions of shareholder representative litigation, the author discusses how to regulate the abuse of shareholder representative litigation.This article mainly divides into four parts, as follows:The first part is an overviewing about the abuse of shareholder representative litigation. Mainly introducing the definition of the abuse of shareholder representative litigation, constitutive requirements and forms, the legal basis of regulating abuse of shareholder representative litigation is briefly discussed, and summarizes the significance of regulating abuse of shareholder representative litigation.The second part is introducing the United States, Japan and Germany of regulating abuse of shareholder representative litigation legislation.By introducing the three countries’ shareholder representative lawsuit about rampant litigation of regulation measures, summarizing the three countries the advantages of regulating abuse of shareholder representative action, the aim is to how to regulate abuse of shareholder representative action in our country.The third part mainly introduces measures of regulating abuse of shareholder representative action in our country at present, through the introduction of legislation, summing up the regulation problems existing in the abuse of shareholder representative action, in our country at present.namely, pre-suit requirement(demand) cannot stop actions, security for expenses in derivative action is not sound, the mediation system is not reasonable, and losing shareholders’ liability is not clear.Fourth part is based on the third part of our country in regulating abuse of the problems existing in the shareholder representative litigation, article points were analyzed, and puts forward legislative Suggestions, looking forward to the perfection of regulating abuse of shareholder representative litigation.Through the study of the legal regulation of abuse of shareholder representative litigation, let shareholder representative litigation better play the role of the protect the interests of the shareholders and the company, hoping these regulations can work properly. |
