Research Of Double Derivative Suit

The Shareholders double representative lawsuit system is not only beneficial to optimize the structure of parent-subsidiary corporate governance, but also to protect the interests of shareholders. Along with the management pattern is more and more collectivized, the shareholders double representative lawsuit system has been recognized by the United States, South Korea, Japan and other countries. Operation mode with the structure of parent-subsidiary companies is more and more popular in China. The shareholder representative litigation system is difficult to solve various difficulties in the judicial application. The parent company shareholders' rights and interests can not get full guarantee. In view of the difference between the shareholder representative litigation and double shareholder representative litigation,this article will be in research of shareholder representative litigation double system through normative analysis,comparative analysis and other methods.In addition to the introduction, there are three parts. The first part discuss the connotation of the shareholder double representative lawsuit. There are some differences between the shareholder representative litigation and the shareholder double representative litigation system. Then the article discuss the support and against for the system theory. The discussion on support theory includes legal person personality denial theory, common control theory, agency theory, theory of specific performance. The objection theory is that the current law can protect company shareholders' rights and interests. The shareholder double representative litigation system can lead to the risk of abuse. The analysis shows that although each theory is deficient. But it does not have reasonable reason that the shareholder double representative litigation system should not be applied.The second part of the article analyzes the necessity and feasibility of building a shareholder double representative litigation system in China. From the perspective of the necessity, our shareholder representative litigation system is in trouble and problems that caused by law absence. There have been many cases of such encroachment on the interests of parent companies. The analysis of the typical case emphasizes the importance of protecting the shareholders of the parent company. From the perspective of feasibility,the shareholder double representation suits the legislative purpose of China's corporate law, which is in line with the reality of corporate governance in our country. The function of the system's own compensation and the warning of malpractice is very important to the improvement of corporate governance. It's the key to balance the interests of the company.The third part of the article discusses the application, subject qualification restriction and the preprogram of the shareholder double representation litigation system. First of all,the legal relationship between parent-subsidiary standard is not clear. The view is in favor of a wholly-owned holding relations. The parent company shall hold a 100% stake in the subsidiary. In addition, the parent company and the parent company shareholders common actual control subsidiary exceptions, this paper argues that by the supreme people's court released in the form of typical cases related to the referee rules. In wholly owned subsidiary of parent-subsidiary relationship, not all subsidiaries can become the subject of litigation, the unit should be a important subsidiary, the parent company should they hold shares in the subsidiary and the amount of the shares shall be accounted for more than one 5 of its parent company's total assets. Excluding non-essential subsidiaries is because of its minimal impact on the parent company. Second, in the case of subject-matter qualification, only the shareholder of the parent company is the plaintiff in the lawsuit, and restricts his shareholding condition. The parent company of the limited liability company does not have any restrictions on the terms of ownership. Under the general case, the parent of a joint stock limited company shareholder, holding subsidiary shares must meet more than 180 consecutive days alone or combined holding more than 1% of the parent company. The parent company shareholders shareholding limit is the same as the general case, but holding time limit is adjusted for the accumulative calculation shareholder stake in the company and the parent company of time. From the time that the parent shareholder begins to hold the shares of the original company before the exchange of shares, the company will be able to hold more than 180 days to meet the eligibility of the plaintiff. The shareholder's double on behalf of the lawsuit defendant,from two aspects: the scope of subject and the objective behavior analysis, the defendant shall include subsidiary of directors, supervisors and senior executives, the actual control of the company's controlling shareholders, actual controllers and with the collusion of ordinary people. The illegal act of the defendant may be specified in a general and enumerated manner. Finally,the idea of the preprogrammed procedure is proposed in the case of the shareholders' dual representation. By analyzing more academic circles there are four kinds of views, namely first request after the parent company subsidiary,stepmother to request first subsidiary company, at the same time request and parent-subsidiary said subsidiary respectively at the same time notify the parent company,said that in favor of the fourth view in this paper. The argument is that the company has strong ties to the interests of litigation, compared to other models. At the same time, the shareholder representative litigation double also want to continue the company law about the shareholder representative litigation exception to the provisions of the preceding procedure, in case of emergency, avoid to cause irreparable loss of the premise condition,allowed to waive prepositional procedure shall apply.The innovation of this article lies in the dual to the double shareholders lawsuit system,depending on the comprehensive analysis of theory and judicial practice,which build premise of the sued, the plaintiff eligibility requirements, prepositional procedure concrete system.