Research On Dual Shareholder Representative Litigation System

At present,under the impetus of the endogenous power of market economy,the development of Chinese companies are gradually moving from simplification to collectivization,which is increasingly obvious.The shareholder representative action based on the vision of protecting the company’s interests has obviously been unable to effectively deal with the disputes arising from this trend.From the perspectives of theory and practice,and based on the consideration of national conditions,the introduction of dual shareholder representative action in China is not only an inevitable way to properly resolve disputes and meet the standard of social development,but also an inevitable requirement to strengthen corporate governance and optimize the structure of group corporations.This paper is divided into three parts.The first part analyses and remolds the various theoretical foundations of the dual shareholder representative action through the normative analysis method,and finds that the mainstream supporting theories of the current dual shareholder representative action demonstrate the legitimacy and rationality of the system from a single point of view,without touching on the essence of the system,the theory of “property independence and asset division” and the theory of “the frustration of anticipated interests” are the ultimate support of the system.Based on the theory of “property independence and asset division”,the shares(equity)of subsidiary companies should also belong to the special property category of the shareholders of parent companies;when the interests of subsidiary companies are damaged,the damage to the interests of the shareholders of parent companies is more direct and real;and based on the theory of “expectant interests are lost”,When the shareholders of parent companies are facing the period caused by random changes in the operation of the company,they can voluntarily choose to withdraw from the company,and should also have the right to choose to actively respond to the double representative action.The second part mainly demonstrates the necessity,legitimacy and feasibility of introducing the dual shareholder representative litigation system in our country.Firstly,the existing settlement mechanism of parent-subsidiary disputes-shareholder representative litigation system is reexamined by normative analysis and empirical analysis.This system may not only cause the plaintiff to fall into the predicament of lacking the basis of litigation right in law,but also make the court fall into the awkward situation of contradiction between reasoning and judgment in the process of concrete application.In view of this,it is particularly necessary to introduce the dual shareholder representative litigation system to avoid such drawbacks.Secondly,the dual shareholder representative litigation system conforms to the connotation of the legal value of justice.Applying this system to resolve disputes between parent and subsidiary companies can not only effectively protect the legitimate rights and interests of legal subjects,but also highlight the justice function of law.Finally,through the comparative study,this paper explores the historical evolution of the dual shareholder representative litigation system in the United States and Japan,and compares it with China horizontally,extracts the "common factor" from the legislative background level,and concludes that although the dual shareholder representative litigation system is not the most perfect system,it is the elimination of the representative under the parent-subsidiary company structure under the background of the current trend of corporate collectivization.The most ideal system for the thorny problems of litigation disputes is also a powerful guarantee to ensure that our company can move steadily and far in the tide of supply-side structural reform.The third part comprehensively uses comparative study,normative analysis and empirical analysis,and combines with China’s national conditions,fully considers the relevant excellent legislative experience of the United States and Japan,to carries out reasonable legislative design of dual shareholder representative action in China from two perspectives of subject and procedure.As far as the main body is concerned,Firstly,from the perspective of maximizing the protection of subsidiary company’s interests,parent company only need to form factual control over subsidiary company.Secondly,with regard to the qualification of plaintiff,in general,we should combine the nature of parent-subsidiary company and the provisions of the current Company Law for qualified plaintiff,and at the same time follow the “derivative” nature of the system to identify;in the case of stock exchange,we should focus on the realistic needs and rationality.Finally,considering the legislative intention of the system and the harmony and unity within the legal system,the scope of the defendant of the dual shareholder representative action should be consistent with the shareholder representative action,that is,all persons including “others”.As far as procedure is concerned,the pre-procedure of dual shareholder representative action involves both parent company and subsidiary company,so it is more appropriate to adopt the “double-tier sequential filing mode” in accordance with the principle of “internal remedy before external remedy”;in combination with judicial practice,its exemption situation needs to increase the “plead demand futility”.The litigation status of parent company,subsidiary company and other litigation participants should be determined in accordance with the current company law and the relevant provisions of the Civil Procedure Law.