| The prepositional procedure for shareholders’ representatives in China was originally set up in Article 152 of the Company Law issued in 2005.It has made relevant provisions from the aspects of applicant,respondent,application form and content,application method,accepting application organ and exemption.The establishment of the pre-litigation system is of great significance in maintaining the independent legal personality of the company,improving the corporate governance environment,preventing abuse of litigation and malicious litigation.Subsequently,the Company Law and the supporting judicial interpretation revised in 2018 have supplemented and perfected the contents of the foregoing provisions one after another,but through the relevant data analysis of judicial practice,it is found that the design content of the pre-procedure system is still lagging behind and not specific compared with the application of judicial practice.First of all,based on the choice of "simple shareholderism" and excessive control of the applicant’s qualification of a joint stock limited company,the irrationality stipulated by the applicant is on the paper,and the unclear rules of the respondent when the directors,supervisors,executives jointly infringe and "others" infringe the legitimate rights and interests of the company lead to confusion in the application of shareholder representative litigation law in practice,it is urgent to improve it.Since then,the application form and content have never been standardized to increase the difficulty of the court to hear the case,which may lead to the damage of the interests of the company and the rights and interests of the shareholders in the case of the same case.Moreover,accepting the confirmation of the application organ,our country adopts the cross-examination system,which gives the directors(meeting)and supervisors(meeting)the right to accept the application,but obviously lacks the independence and the responsibility restriction,which makes the effect of the pre-procedure system greatly reduced.Finally,when the "request futility" model gradually becomes the court’s obligation to exempt the applicant from the pre-procedure,it lacks a clear legal basis and the definition of the "emergency" clause still lacks specific guidance.The judicial practice of pre-procedure is prone to confusion,which obviously violates the original intention of its system and is not conducive to the realization of litigation purpose.In view of these problems,on the one hand,the author advocates the expansion and interpretation of the "shareholders" in the provisions of the pre-procedure,and appropriately reduces the strict limitation of the proportion and duration of the applicant’s shareholding in the limited company,which is helpful to reduce the limitation of the application of the pre-procedure.At the same time,it is clear that the significance of the rules of the respondent lies in this.While perfecting the supervisory board system,it establishes the relief measures when the directors and supervisors jointly infringe,which is helpful to make more flexible use of the provisions of the pre-procedure.On the other hand,standardizing the form and content of the application and perfecting the composition of the accepting application organ make the pre-procedure more practical,and on the basis of enhancing the independence and responsibility of the accepting application organ,it can unify the application of the judicial practice of the pre-procedure.Finally,I hope that on the basis of studying the extra-territorial system,we can clarify the criteria for determining the exemption of pre-procedure,strengthen the guidance of the "emergency" clause while clarifying the legal basis for the application of the "request futility" model,so that the court can judge cases with laws and evidence,reduce or even no longer apply to the explicit clause,and perfect the pre-procedure system. |
