Research On Pre-Procedure Of Shareholder Derivative Action

In the governance structure of Chinese companies,when directors,supervisors,senior management personnel,etc.infringe on the interests of the company and the internal organs of the company are in the process of exercising the right of action,the small and medium-sized shareholders who meet certain conditions can directly exercise the right of action of the company,thus giving birth to a way of rights relief.That is,shareholder derivative litigation.China introduced the shareholder derivative action for the first time in the revision of the 2005 New Company Law,this system was established to compensate for the loopholes in the protection of shareholders’ rights and interests and to improve the corporate governance structure through its right to appeal.In order to prevent small and medium-sized shareholders from seeking private rights to abuse the right to appeal,the design of the pre-procedure becomes an inevitable choice in the shareholder derivative action.However,China’s provisions on pre-procedures are too principled and vague,resulting in many problems in judicial practice that cannot be resolved.To this end,this paper takes the economic law’s rights standard as a perspective,re-understands and analyzes the shareholder’s derivative litigation pre-procedures,and uses the economic law’s rights-based concept to guide how to further strengthen the protection of minority shareholders’ rights,without causing abuses.Proposals for the feasibility of perfection for the pre-procedures of shareholder derivative litigation.The establishment of economic law is to set up corresponding rights among different economic subjects to restrain and restrict the rights of strong subjects,support and protect the rights of weak subjects,so as to prevent the imbalance of rights among economic subjects and focus on the overall coordinated development of the society.Accordingly,the right standard of economic law is a legal concept with the core and main axis of guaranteeing and highlighting the rights of economic subjects,and its focus is also for the coordinated development of economic subjects in the whole society.Applying the concept of right standard of economic law to the preposition procedure of shareholder’s derivative action is to protect the rights of minority shareholders through judicial relief and prevent the abuse of minority shareholders’ use of this right.Thus it can be seen that the preliminary procedure of shareholder derivative action exactly coincides with the idea of right standard of economic law.In other words,the pre-procedure of shareholder derivative action is actually the concrete application of the right standard of economic law.Can be on the design of the shareholder derived litigation prepositional procedure in our country,not only lead to boot because actual interoperability is not strong,lead in the program the applicant or the plaintiff shareholders holding time,number of holdings,lack of clarity,and apply for authorities to accept the provisions of the imperfect,prepositional procedure of the respondent that shareholder derived litigation defendant "others" in the scope of the lack of specific limits,combined with the preceding procedure of examination and immunities also has a lot of unreasonable place,and the function of the prepositional procedure review subject in practice weakened and the company law in our country is not clearly defined as "emergency" of exceptions,all these problems,In our country it is difficult to realize the establishment of shareholder derived litigation prepositional procedure implies the purpose of the economic law right standard,therefore,should the right standard of economic law,from diligence obligations,the applicant,the defendant,to apply for acceptance authority and prepositional procedure of examination and immunity and so on,to further improve the prepositional procedure of shareholder derived litigation in our country.In fact,using the right standard concept of economic law to perfect the pre-procedure of shareholder derivative action in China can not only awaken the right consciousness of investors’ shareholders,but also make full use of shareholders’ right of judicial relief,so as to supervise the company and improve the governance structure.