Defendant Of Shareholder’s Representative Action’s Determination

Shareholder derived litigation in 2006, the new "company law" the 152 th is first tries to make clear a regulation, revised in 2013, is the content of the article 151 of the company law. "Company law" the provisions of the law for the main body of the definition of ambiguity exists, a class of defendants is directors and senior managers and supervisors, another kind is "others". For the regulation of "others", is the defining standard of the company law infringes upon the lawful rights and interests of the company and damage the interests of the company, but there are many of this kind of behavior subject, have different impact on the company, in actual judicial operation also exist around the court disagreed. In this paper, the scope of shareholder derivative lawsuit defendant subject nature of the categories of classification, according to the classification of all kinds of subjects were discussed. Mainly relates to the directors and senior managers to become the necessity of the defendant and conditions, the rationality of the supervisors as the defendant and conditions, "others", which includes the analysis of the main body, analyze the definition of the behavior of others, in order to shareholder derived litigation defendant scope of study and put forward some reference point of view.This article mainly around the basic nature of shareholder derivative litigation, expand the scope of the defendant shareholder derived litigation to determine the influence of the factor analysis, and the main body can be derived lawsuit defendants to make analysis, for each type of the division of theme and are based on the derived litigation system attributes, can discuss all kinds of subject essence as a defendant, or as a condition of the defendant’s situation and what, in order to achieve for the determination of the scope of the defendant shareholder derived litigation. This article main text has the following four parts:The first part is the scope of the defendant shareholder derived litigation to determine the overall introduction of legislative ideas. Synoptically introduced the legislative model and constraints in the freestyle legislative mode, the basic idea of the two aspects of legislation and judicial practice of our country actual situation, and the defendant of the shareholder derived litigation subject has carried on the classification, subject classification according to the kinds of two aspects of legislation and the influence of the company, is divided into four categories and three types of two kinds of situations. This part is the problem of this article put forward and summarized, for the following specific subject to lay a theoretical basis for the discussion of the defendant.Shareholder derived litigation discusses the scope of the defendant. Three main body, and made a small difference between the directors and senior management personnel due to have the company’s actual control and management of the authority, they are divided into a small class, directors and senior management personnel as the main body is clearly stipulated in article 151 of the defendant, the content of the legislation practice why to do so, what is the theoretical basis and the foundation of corporate governance, in this part are analyzed. For directors and senior management personnel, although their actions damage the company’s interests but not necessarily is its control or intentional behavior, does not exclude the exception condition, directors and senior management personnel and as a shareholder derived litigation of the defendant’s must be a breach of the duty of their own behavior, the behavior is in itself the directors shall be prepared, if responsibility is dereliction of duty, not at this time the behavior as derived litigation sued for granted. Supervisors and company executive authority, but supervisors and directors, senior management personnel, and not the actual manipulation of the company’s operation, they are the role of supervisors, and supervisors will be derived lawsuit defendant. This part of the problem analysis, the supervisors are appropriate for the accused and the supervisors discussed as a condition of the defendant.3 Shareholder derived litigation is to protect the interests of small and medium-sized shareholders, especially minority shareholders, the nature of shareholder derived litigation to protect the interests of the minority shareholders to understand. And then, based on the above analysis of the controlling shareholder, come to the conclusion that whether the controlling shareholder is suitable for as a defendant, and the specific conditions of controlling shareholders as the defendant thinking and discussion, the condition of setting mainly from the perspective of tort liability, do a general rule, to guide of the condition of controlling shareholders as the scope of the defendant.The fourth part is the debtor can be on the company shareholder derived litigation defendant subject thinking discussed. This part analyzes the specification from the debtor in the civil law system, discuss the debtor in the civil law system and the differences and similarities of company law system. Based on the analysis, then the debtor in the role of shareholder derived litigation analysis comparison, analysis of the author as the main shareholder derived litigation defendant for whether the debtor is suitable for the point of view.The above four parts is the main content of this article. Based on the comparison method, system method and history method research methods, mainly the United States in the company law, Japan law on shareholder derived litigation theory study, discussion for the legislation and judicature in our country. Article body content after three chapters as the main parts, the first chapter for the problem put forward and an overview of basic theory research, chapter three categories after main body involved in the discussion of shareholder derived litigation can all kinds of main body as the accused and the defendant as the actual requirements. After three chapters of primary and secondary distribution of different content of each chapter, chapter 2 as the main chapters, discussed the main content is relatively rich, after two chapters are the classification of the scope of "others" discussion, each chapter main body of a single, formally as a small chapter.After more than four parts of contents of the discussion, this paper hope through study and research can be beneficial to the defendant shareholder derived litigation subject to conform to the derived lawsuit system thinking, logical thinking clearly, and eventually expect to put forward some relevant ideas.