| According to the current Company Law of China,if the subsidiary company refuses to file an action when the interests of the subsidiary company are infringed,the parent company shall file a shareholder derivative action to protect the legal rights and interests of the subsidiary company,while the shareholder of the parent company is not the direct shareholder of the subsidiary company,so it has no right to file a shareholder derivative action on behalf of the subsidiary company.Based on the investment relationship between the parent company and the subsidiary company,there is close interest relation between the shareholder of the parent company and the subsidiary company under the parent-subsidiary company structure.In the above circumstance,if neither parent company nor subsidiary company files an action,then not only the loss of the subsidiary company cannot be remedied,but also the interests of the shareholder of the parent company will be damaged.In order to solve the above problem,the United States developed the dual shareholder derivative action in case law,giving the shareholder of the parent company the right to file an action on behalf of the subsidiary company,so as to protect the interests of the parent-subsidiary company and its shareholder.In the Revised Draft of the Company Law of China published in 2022,the director,supervisor and senior manager of subsidiary company are included in the defendant scope in shareholder derivative action to establish the dual shareholder derivative action.With a new round of revision of the Company Law of China,the paper studies on the dual shareholder derivative action,and puts forward some concrete system design schemes on the basis of which will provide reference for the construction of the dual shareholder derivative action in China.In addition to the introduction and conclusion,the paper includes the following four parts:The first part is about the basic theory of the dual shareholder derivative action.This part first analyzes the concept and nature of the the dual shareholder derivative action.On this basis,it compares the dual shareholder derivative action with the double shareholder derivative action to deepen the understanding of the system.Then the paper studies the theory of affirming the the dual shareholder derivative action,in order to clarify the legal basis and legitimacy of the system.Finally,the paper refutes the theory of denying the dual shareholder derivative action,in order to reveal the inherent defects of the negative theory,and then demonstrates the legitimacy of the system from the opposite side.The second part is about the necessity and feasibility of the introduction of the dual shareholder derivative action in China.Firstly,based on the current judicial situation and legal norms of China,this part analyzes the judicial chaos of different judgments in the similar cases under the background of the absence of system,as well as the application predicament of the current Company law under the parent-subsidiary company structure,so as to prove the necessity of the introduction of the dual shareholder derivative action in China.On this basis,the paper probes into the legislative intent of Company Law of China,the functional advantages and the beneficial exploration of the introduction of the system in China,so as to prove the feasibility of the introduction of the dual shareholder derivative action in China.The third part is about the extraterritorial investigation of the dual shareholder derivative action.This part first discusses the establishment background of the dual shareholder derivative action in the United States and Japan in order to clarify the real basis of the establishment of the system.Then the paper investigates the development of American case law and legislative process of Japan,so as to provide a practical reference for the introduction of the system in China.In the end,the paper analyzes the system design of the dual shareholder derivative action of the United States and Japan,and summarizes the experience,so as to provide useful reference for the construction of the system in China.The fourth part is the system construction of the dual shareholder derivative action in China.When constructing the dual shareholder derivative action,we should focus on the following aspects: applicable premise,plaintiff qualification,defendant scope and pre-procedure,so as to reduce the risk of abuse of action right as much as possible and ensure that the dual shareholder derivative action will play its due function.Specifically,the applicable premise should be regulated from two aspects: the degree of share holding of the parent company and the importance of the subsidiary company.The plaintiff qualification should be defined from the share holding time and the purpose of action.As for the the defendant scope,it should be limited by referring to the provisions of the Company Law on the single shareholder derivative action.For pre-procedure,the reverse request mode shall be adopted,and corresponding exemption shall be established. |
