On The Establishment And Construction Of Dual Shareholder Representative Litigation System In China

At present,China’s economy is developing rapidly,the company’s business philosophy has made continuous progress.Collectivization is the changing trend of the company structure,and the parent-subsidiary structure has become the norm.There are increasing cases of tort.In December 2021,the Company Law of the People’s Republic of China(Revised Draft)once again explicitly proposed dual shareholder representative litigation.Although the official draft has not been formally promulgated,it has indicated that the judicial environment of China urgently needs to establish this system.Firstly,to study the theoretical basis of the system,we need to clarify its connotation and nature.By comparing the single and dual system,it is determined that when the subsidiary’s rights and interests are damaged,resulting in the parent company’s interest victimization.The latter is lazy to protect its rights,and the parent company’s shareholders enjoy the right of action.At the same time,for the positive and negative theoretical disputes in the academic circles,they agree with the "theory of ultimate victimization of shareholders of the parent company".Secondly,it explores the necessity and feasibility of establishing the system.Relying on shareholder representative litigation system can not completely solve the judicial practice of many cases,the shortcomings of the existing system is increasingly reflected in the changing environment.By sorting out the cases in practice,it is deficiency that the protection of shareholders’ rights and interests of the parent company.Dual shareholder representative litigation system plays a great role in improving the governance structure of companies and protecting the shareholders’ interests of parent companies.Theoretically,the system conforms to the legislative purpose of safeguarding the interests of shareholders in China,consolidates the independent legal personality of companies,takes the "theory of ultimate victimization of shareholders in the parent company" as the theoretical basis,and cooperates with the existing legal system of shareholder representative litigation;In practice,China has explored the system for a long time in legislation and maintained corporate autonomy in application.Thirdly,many countries in the world have established this system,such as the United States and Japan.Although there are differences in system details,the ultimate purpose is to get rid of the difficult situation of the parent company’s shareholders lacking relief channels.The establishment of the system in China can learn from the advanced experience of other countries,study the establishment and development process of the system in foreign countries,and compare the legislative design of the system,highlighting the exclusive value of the system.Finally,the uniqueness of the system should also be reflected in some aspects.It designs the system from the perspectives of applicable premise,qualified plaintiff,qualified defendant and pre procedure,and puts forward specific operating rules.China’s specific system construction needs to conform to practice.