| The company law of our country introduced the shareholder representative litigation system in 2005,giving small and medium shareholders a litigation remedy to protect their legitimate rights and interests.It is one of the main tools for small and medium shareholders to correct poor corporate governance,effectively further protecting the rights of shareholders.However,the shareholder representative litigation system is based on a single company,and only shareholders of the company can initiate litigation.However,in the parent-subsidiary company,when the interests of the subsidiary are infringed by the senior management of the subsidiary,and neither the parent-subsidiary company prosecutes the behavior,since the interests of the parent-subsidiary company are closely linked,it will inevitably affect the interests of the parent company and the parent company’s shareholders.At this time,the shareholder representative litigation system established on the basis of a single company in my country cannot give full play to its due value,and the rights and interests of shareholders of the parent company cannot be protected.Therefore,this article believes that it is necessary to learn from the experience of the United States and Japan,introduce a dual shareholder representative litigation system,and allow shareholders of the parent company to file a representative lawsuit against the damaged interests of the subsidiary,in order to further protect the rights and interests of the minority shareholders of the parent company.The dual representative right of action is a kind of common-benefit right,which has representativeness and subrogation,and is an exception to the principle of just plaintiff.There are seven theories supporting this system,including the denial of legal personality theory,agent theory,joint control theory,trustee theory,specific performance theory,parent company shareholder ultimate victimization theory,compensation and deterrence function theory,among which the compensation and deterrence function theory is the The system provides more comprehensive support.The objection theory mainly believes that there are other remedies that violate the principle of simultaneous ownership of shares.The opponents’ reasons are not sufficient.The former said that the remedies are very cumbersome and seek farther away.Not only can it not directly and effectively realize the benefit of the parent company’s shareholders,but it will also enhance the judicial system.cost.The principle of simultaneous ownership of shares has its own shortcomings under the parent-subsidiary structure,which will cause the plaintiff to lose his status as a qualified subject during the proceedings.This principle is not sufficient to deny the system.Although the United States and Japan differ in their specific system construction,their system value orientations are the same.They are all in order to deal with the conflict between the company’s diversified organizational form and the parent company’s shareholders’ interests in practice,in order to achieve shareholder protection and company protection.The state of relative balance of autonomy.The United States was the first country to recognize this system,and Japan was the first country to introduce this system through legislation.Compared with the United States,Japan’s system construction is more stringent.It has two situations that do not allow the initiation of dual representative lawsuits,and strictly restricts parent-subsidiary shareholding conditions and the scope of eligible plaintiffs and defendants.The United States has There are no strict restrictions.Generally speaking,the United States and Japan both focus on the three requirements of applicable prerequisites,eligible subjects,and pre-procedures in the construction of the system.When introducing the system,my country should proceed from these three requirements and carry out localization construction based on my country’s current situation.The fourth draft of the judicial interpretation of the company law issued by my country in 2016 tried to introduce this system,and tried to expand the interpretation of the defendant scope of single representative litigation so that it could be applied to wholly-owned subsidiaries.Unfortunately,the final official draft deleted The rule is gone,but it shows to a certain extent that my country’s legislature recognizes the system.Related cases have appeared in judicial practice since 2004.The author has listed and analyzed each case and found that there are different judgments in the same case.This is caused by the gaps in legislation and the different subject considerations of the trial judges.Looking at the various judgments,it can be seen that the majority of trial courts have no relevant legal provisions,and in order to avoid the suspicion of“judges making laws”,the plaintiff dismisses the prosecution as inappropriate,and there are also a few courts that support it.However,no matter whether the result is support or opposition,there are deficiencies.It is somewhat rigid to expand the interpretation of the existing provisions to support the original complaint requesting existence and creating the law,and it is somewhat rigid to reject it without a legal basis.The necessity of introducing this system in our country is embodied in that it can make up for the lack of the parent company’s minority shareholders’ benefit protection system and improve the internal governance structure of the group company.Our country has the background of trying to introduce this system in legislation,and the existence of larger system requirements in judicial practice provides it with feasibility.In the specific system design,the author mainly constructs from four aspects: the scope of the plaintiff,the scope of the defendant,the pre-procedures,and the mechanism for preventing abuses.Regarding the scope of the plaintiff,firstly,the parent-subsidiary holding requirement shall adopt the sufficient holding standard,and for the eligible plaintiff,the existing single-representative litigation regulations shall be followed.In the case of share exchange and share transfer,the holding time shall only be accumulated to 180 days.Regarding the scope of the defendant,it is not required that the subsidiary must be an important subsidiary.The eligible defendant follows the single-representative litigation regulations and clearly expands the interpretation of “others” to include internal personnel of the parent subsidiary and third parties outside the group.The pre-procedure adopts a single-item filing and notification model to respect the independent legal personality of the parent company while ensuring efficiency.The shareholders of the parent company must first perform a written request to file a lawsuit with the subsidiary’s board of directors or the board of supervisors,and at the same time perform the obligation to notify the parent company.The subsidiary refuses to file a lawsuit or fails to respond within 30 days before they can initiate a representative lawsuit on their own.At the same time,it stipulates a pre-procedure exemption system in emergency situations.Regarding the mechanism for preventing abuses,the misconduct targeted by the parent company’s shareholder litigation should have caused actual losses to the parent company,and the lawsuit must have no improper purpose,otherwise its right of litigation is not supported. |
