Research On Derivative Action System Of Dual Shareholders In China

Since the establishment of a single shareholder derived litigation,investors for themselves with the company’s rights and interests protection consciousness gradually improve,also unprecedented changes have taken place in the form of the company By a single flat style,gradually transformed into a complex nested architecture Especially in the form of parent-subsidiary highlights gradually,and gradually known by people But,there are a series of new problems When the main violations of the rights and interests of the company such as company directors,due to its above director for practical the infringer,the possibility of subsidiary civil lawsuit against their accountability is very low And subsidiary director tend to be appointed by the actual control of the parent company,the tort is often in the behest of the actual controller As a result,a single shareholder derivative suit by the parent company is hardly possible.In order to solve this problem effectively,our country in 2016,the company law of judicial interpretation（four）are introduced in the draft of the double shareholder derived litigation system The system have breakthrough in the dual legal person,parent and subsidiary to the parent company shareholders have the plaintiff qualification Unfortunately,the related provisions when released to be deleted in 2021 company law（revised draft）The fourth clause of article 188 of the draft stipulates that the derivative action system of dual shareholders can save the damaged rights and interests of the parent subsidiary if it can be introduced timelyIn order to construct the system in China,this paper carries out research from four parts.The first part focuses on clarifying the theoretical basis of the system.Firstly,it summarizes the system from three dimensions:concept,nature and characteristics.Then,refute the theories against the establishment of the system,analyze the theories supporting the establishment of the system,and clarify its theoretical value.The second part is the realistic basis analysis of the system,mainly from the feasibility and necessity of two aspects.At the feasibility level,it focuses on realizing corporate governance and protecting shareholders’ rights and interests.At the level of necessity,it takes legislative practice and judicial demand as the starting point.The third part is the practice experience of the system abroad,taking the United States and Japan as the research object.Through the analysis of the origin,development and improvement of the system in the two countries,the useful experience for China is summarized.The fourth part is the concrete design suggestion of the system.Mainly from the application of premise,litigation subject,pre-procedure,prevention mechanism of four dimensions.In the application of the premise,the importance of the parent-subsidiary relationship and subsidiaries are limited;In terms of the subject of litigation,it is constructed from two angles:the scope of suitable plaintiff and defendant.In the aspect of pre-procedure,on the basis of analyzing the reason of establishing the procedural requirement,the specific request order is set up,and the corresponding exemption situation is clarified.In terms of prevention mechanism,the board of supervisors should be given the right to prevent litigation and the guarantee system of litigation costs should be added to improve the prevention mechanism,so as to reduce the possibility of abuse of litigation.