股东代位诉讼制度研究

【作者】 刘金华；

【导师】 杨荣馨；

【作者基本信息】 中国政法大学 ， 诉讼法学， 2007， 博士

【摘要】 股东代位诉讼制度,是指当公司的合法权益受到不法侵害而公司怠于起诉时,公司的股东以自己的名义起诉,所获赔偿归于公司的一种诉讼形态。随着我国经济的不断发展,公司治理结构中存在的问题日益凸显,董事、监事、经理等高级管理人员侵害公司利益,进而侵害小股东利益的现象逐渐增多,公司及其小股东的利益迫切需要法律保护。我国新修订的《公司法》虽然首次对股东代位诉讼作出了规定,为少数股东维护自身的合法权益,进行代位诉讼提供了法律依据。但是,法律规定还不完善,还存在诸多的问题。本文拟从程序法的角度入手,对股东代位诉讼制度所涉及的问题进行比较全面系统、深入细致的研究,以期对建立和完善我国股东代位诉讼制度有所启迪和帮助。本文共分七章,具体包括以下内容:第一章:股东代位诉讼制度概述。主要介绍了股东代位诉讼制度的基础性问题,包括概念和特点;功能;起源和历史发展;股东代位诉讼与股东直接诉讼的关系;股东代位诉讼与代表人诉讼、债权人代位诉讼的关系;确立股东代位诉讼的原则等。(1)本文认为股东代位诉讼,是指当公司的合法权益受到不法侵害而公司怠于起诉时,公司的股东以自己的名义起诉,所获赔偿归于公司的一种诉讼形态。主要具有以下几个特点:是基于股东身份而产生的诉讼;原告股东代位行使公司的诉权;股东以自己的名义提起诉讼;忽视公司的独立人格;否定资本多数决原则;适用于有限责任公司和股份有限责任公司。(2)股东代位诉讼制度主要具有以下几个功能:保护少数股东的合法权益;保证公司治理机制的正常运转;维护证券市场的良性运行。(3)股东代位诉讼的起源和历史发展:股东代位诉讼制度是由英国判例法首创,在美国得到极大的发展。本文主要以美国和日本为例,介绍了股东代位诉讼制度的发展过程。同时指出,我国的股东代位诉讼制度经过了萌芽阶段和立法确立二个阶段。(4)股东代位诉讼与股东直接诉讼之间的关系,是既存在区别,又可以相互转化。股东代位诉讼与代表人诉讼、债权人代位诉讼之间的关系,是既有相似之处,也有重要的区别。(5)确立股东代位诉讼制度应当遵循以下原则:保护小股东合法权益原则;公司自治与国家干预相结合原则;鼓励正当诉讼与防止投机诉讼相结合原则;立足国情、符合实际原则。第二章:股东代位诉讼制度的理论基础。理论基础的研究是构建各项诉讼制度的前提条件。本文认为,确立股东代位诉讼制度的理论基础是权利平等保护理论和当事人扩张理论。(1)将权利平等保护理论作为理论基础,是为了保护小股东的利益,进而保证人们对公司制度的信赖,并愿意投资于公司。因为中小股东在公司中往往处于弱示地位。确立权利平等保护的基础是股东实体诉权,因为公司这一经营形态的出现不过是所有权与经营权分离的结果,公司的最终所有人仍然是股东。只是因为股东欲承担有限责任,减少投资风险,法律才将公司拟制为独立的人格,而对股东的经营决策权也同时加以限制。此时,股东之所有权并没有消灭,而是以股东权的形式存在。从外延上来看,股东权乃是介于受益权和所有权之间的一种权利形态。因而,从理论上来说,对公司利益的侵害,必然同时又是对股东权的侵害,股东基于股东权被侵害的事实而享有对加害者的损害赔偿请求权。(2)将当事人扩张理论作为理论基础,是因为传统的当事人理论存在缺欠,否定了当事人可能享有的程序性诉权,排除了特殊情况下与案件没有直接利害关系的人提起诉讼的可能性。将当事人扩张理论作为理论基础,确立程序当事人,使股东提起代位诉讼的诉讼权利合法化。第三章:股东代位诉讼的原告。股东代位诉讼的提起,必须有适格的原告,为了防止滥诉,保持公司股东之间,以及公司与股东之间的利益平衡,世界各国相关的法律,都对股东代位诉讼原告资格作出了限制性的规定。本文认为,对股东代位诉讼的原告资格应当予以适当的限制,以防止滥诉,但是,亦不能限制的过严,抑制股东代位诉讼制度发挥作用。我国《公司法》对股东提起代位诉讼原告资格的规定过于严格,缺乏可操作性,需要立法完善。建议主要从以下三个方面考虑股东行使代位诉讼提起权的资格问题:(1)原告在不当行为发生时应当具有公司股东的身份;(2)原告在起诉和维持诉讼期间应当具有股东身份;(3)原告应当能够公正、充分地代表公司和其他股东的利益。此外,对司法实践中,特殊情况下产生的特殊问题,应当在立法中作出例外规定或者变通解释,以保护在特殊情况下依法、善意取得公司股份的人提起代位诉讼的权利。第四章:股东代位诉讼的被告及公司、其他股东的诉讼地位。(1)股东代位诉讼的被告,是指对公司实施不正当行为因而对公司负有民事责任的人。我国股东代位诉讼被告的法律规定,主要存在以下两个问题:一是被告的主体范围过宽;二是被告的客体范围过于狭窄。本文认为,应当修改我国公司法,将股东代位诉讼的被告范围限定为公司董事、监事和高级管理人员,不包括公司以外的第三人。同时,对公司董事、监事和高级管理人员的勤谨义务作出具体规定。(2)公司在股东代位诉讼中的诉讼地位比较复杂,无论公司作为原告、被告或者第三人,它都不是完整意义上的当事人,只是部分地具有当事人的地位,同时又具有多个当事人的部分特征,把公司归类于现行民事诉讼法框架下的哪一种诉讼当事人都不合适。本文认为,既符合民事诉讼法理论,又比较现实可行的办法可能是,明确公司在股东代位诉讼中属于独具特色的诉讼参加人,即在股东代位诉讼中,公司处于中立地位,不享有站在一方与对方进行对抗的权利,但是,可以根据事实和法律提出抗辩,维护公司的权益,法院判决的效力及于公司。并且建议,在修改民事诉讼法时,增加这类诉讼参加人的规定。(3)对于其他股东的诉讼地位,借鉴国外的法律规定,结合我国的实际情况,应当允许其他股东参加诉讼,但出于诉讼效率的考虑,又应当施加一定的限制。参加诉讼的其他股东人数较少的,可以作为共同原告;其他股东人数众多的,适用的规则与我国民事诉讼中人数众多的代表人诉讼比较相似。第五章:股东代位诉讼的激励机制。为了避免在公司拒绝或怠于起诉的情况下,股东再怠于起诉,鼓励股东能够代位提起诉讼,必须强化内在动因和激励机制。借鉴外国立法和司法实践经验,本文认为,立法主要应当确立三个方面的激励措施:一是对股东代位诉讼的诉讼费用实行按件收取制度;二是对股东代位诉讼原告的诉讼费用实行补偿制度;三是对原告股东实行比例性个别赔偿制度。第六章:股东代位诉讼的制约机制。为了制约股东不正当地提起代位诉讼。应当确立制约机制。主要是设置股东代位诉讼的前置程序,确立股东代位诉讼费用担保制度。股东代位诉讼的前置程序,是指股东认为公司的利益受到侵害的,在依法代位公司提起诉讼之前,应当先请求公司机关起诉侵害人,维护公司利益,只有在公司机关拒绝起诉或怠于起诉时,股东才能代位公司提起诉讼。诉讼费用担保制度,是指原告股东提起代位诉讼时,法院有权根据被告的申请,责令具备一定条件的原告提供一定金额的担保,以便在原告股东败诉时,被告能够直接从原告提供的担保金额中获取诉讼费用赔偿的制度。第七章:股东代位诉讼程序的特殊问题。股东代位诉讼程序的特殊问题包括:(1)管辖和诉讼告知;(2)诉讼请求的合并、反诉与举证责任;(3)自认、舍弃与和解;(4)诉讼中止、驳回和诉讼时效;(5)既判力和再审等问题。最后,本文在对上述问题分析研究的基础上,提出了完善股东代位诉讼制度的具体立法建议。更多还原

【Abstract】 Stockholder’s Derivative Action implies that where the company neglects to bring a lawsuit to claim damages after the legal interests of the company are violated, the shareholders of the company will bring such a lawsuit in their own names with the judged damages turned in to the company. With the constant economic development in our country, the problems in the management of companies are becoming increasingly obvious. Since some senior management personnel such as the director, the supervisor, or the manager violate the interests of the company, even the interests of some minor shareholders, the interests of the company and the minor shareholders are in urgent need of the protection of law. Although the newly revised Corporation Law, for the first time, embraces the provision on the Stockholder’s Derivative Action, providing a legal basis to the minority shareholders to protect their legal rights and interests through Stockholder’s Derivative Action, the legal provisions are not perfect at all with many problems to be solved. This paper, from the point view of the procedural law, does a thorough, systematic, in-depth as well as detailed research on the issues involved in the system of Stockholder’s Derivative Action, hoping to provide enlightenment and help to the construction and improvement of the system of Stockholder’s Derivative Action in our country.This paper is divided into seven chapters. They are as follows:Chapter One A Survey of Stockholder’s Derivative Action This chapter focuses on some fundamental issues involved in the system of Stockholder’s Derivative Action, including some concepts and their features, functions, origins and development; the relationship between Stockholder’s Derivative Action and actions brought by shareholders directly; the relationship between Stockholder’s Derivative Action and action brought by representatives or action of subrogation of creditors; the principles for the establishment of Stockholder’s Derivative Action, and so on.(1) This paper indicates that Stockholder’s Derivative Action implies that where the company neglects to bring a lawsuit to claim damages after the legal interests of the company are violated, the shareholders of the company will bring such a lawsuit in their own names with the judged damages turned in to the company. Such litigation has the following features: it is the litigation based on the identity of the shareholders; the plaintiff shareholders subrogate the company to exercise its litigious right; the shareholders bring the action in their own names; the independent personality of the company is neglected; the majority rule does not apply in such cases; it is only applicable to the limited liability company and the company limited by shares.(2) The functions of Stockholder’s Derivative Action are as follows: to protect the legal rights and interests of the minority shareholders; to guarantee the normal operation of the company’s management system; to maintain the security market in a sound operation.(3) The origin and development of Stockholder’s Derivative Action: Such a system was created by the British common law and greatly developed in the United States. This paper, with the United States and Japan as the principal examples, introduces the process of the development of Stockholder’s Derivative Action. It also points out that the system of Stockholder’s Derivative Action experienced its rudiment and its establishment through legislation.(4) Stockholder’s Derivative Action and actions brought by shareholders directly are different from each other, but at the same time interchangeable with each other. Stockholder’s Derivative Action, actions brought by representatives and actions of subrogation of creditors have both similarities and important differences.(5) The establishment of the system of Stockholder’s Derivative Action should conform to the following principles: the principle of protecting the legal rights and interests of the minor shareholders; the principle of combining the autonomy of the company with the interference of the state; the principle of encouraging justifiable litigation and preventing speculation in litigation.Chapter Two Theoretical Basis for the System of Stockholder’s Derivative ActionThe research on the theoretical basis is the premise on which all litigation systems are established. This paper’s view is that the theoretical basis for the system of Stockholder’s Derivative Action is the theory of equal protection of rights and that of the expansion of the scope of parties to actions.(1) Since the minor shareholders are usually in a weak position in the company, to make the theory of equal protection of rights the theoretical basis for Stockholder’s Derivative Action is to protect the interests of the minor shareholders so as to guarantee their reliance on the company and willingness to invest in the company. The basis for the equal protection of rights is the shareholder’s right of action in substance because such operation form is the result of the separation of the ownership and the management, and the ultimate owner is still the shareholder. The law grants the independent personality to the company and imposes limitations on the shareholders’power of management and policy-making only because shareholders want to share limited liability and consequently reduce the risk in their investment. In this sense, the shareholders’ownership does not extinguish. Instead, it exists in the form of the right of shareholders. The right of shareholders is a kind of right lying between the ownership and the right to benefits. Therefore, theoretically, infringing the interests of the company will inevitably infringe the right of shareholders. As a result, shareholders are entitled to claim damages against the infringer based on the fact that the right of shareholders is infringed.(2) To make the expansion of the scope of parties to actions is because there is a defect in the traditional theory of parties to actions, which denies the party’s right of action in procedure and consequently excludes the possibility, under some special circumstances, for the one who does not have immediate interests in the case to bring the lawsuit to the court. To make the expansion of the scope of parties to actions the theoretical basis for Stockholder’s Derivative Action confirms the identity of the procedural party to actions and legalizes the shareholders’right to initiate an action of subrogation.Chapter Three Plaintiff in the Stockholder’s Derivative ActionAn action of subrogation must be brought by a plaintiff with standing. In order to prevent vexatious actions and to keep the balance among the shareholders of the company and the balance between the shareholders and the company, all the countries in the world, in their relevant laws, make restrictive provisions on the standing of the plaintiff in the Stockholder’s Derivative Action. This paper agrees that there should be proper restrictions on the standing of the plaintiff in the Stockholder’s Derivative Action in order to prevent vexatious actions, but such restrictions cannot be over strict to inhibit the system of Stockholder’s Derivative Action from playing its role. The restrictions provided in our Corporation Law on the standing of the plaintiff in the Stockholder’s Derivative Action are over strict. As a result, they are less applicable and need improvement. This paper represents three suggestions on the issue of the shareholders’standing to bring actions of subrogation: (1) the plaintiff must have the identity of shareholder when the wrongful act occurs; (2) the plaintiff must have the identity of shareholder at the time when he brings the action and during the suit; (3) the plaintiff should be able to justly and fully represent the interests of the company and other shareholders. Besides, in judicial practice, particular problems under special circumstances should be regulated particularly through legislation or appropriate adaptations in order to protect the right of the shareholders in good faith to bring an action of subrogation in accordance with law in special conditions.Chapter Four The Defendant, the status of the Company and Other Shareholders in Stockholder’s Derivative Action(1) The defendant in a Stockholder’s Derivative Action refers to the one who does wrongful act to the company and therefore takes civil liability to the company. The legal provisions in our country on the defendant in the Stockholder’s Derivative Action have the following two problems: one is that the subject scope of the defendants is over broad; the other is the object scope of the defendant is over narrow. This paper indicates that the Corporate Law of our country should be revised. The defendant in the Stockholder’s Derivative Action should be limited to the director, the supervisor and the senior management personnel of the company, excluding the third person outside the company. At the same time, the duty of diligence of the director, the supervisor and the senior management personnel should be specifically provided.(2) The status of the company in the Stockholder’s Derivative Action is complicated. No matter whether as the plaintiff, the defendant or the third person to the action, the company is not a party in its full sense. Instead, it only partly has the status of the party to the action with some features of multiple parties. It is not proper to classify the company as any type of litigious parties provided in the existing civil procedure law. This paper points out that what is both practical and in conformity with the theory of the civil procedure law is to identify the company as a participant with its own characteristics in the Stockholder’s Derivative Action. That is to say, in the Stockholder’s Derivative Action, the company is in a neutral position, and has no right to make a stand for one party and defend against the other. However, it can, according to the law and the fact, file pleadings in order to protect the interests of the company. The judgment rendered by the court is binding on the company. This paper also suggests that provisions on such participants in civil actions should be added when the Civil Procedure Law is revised.(3) As far as the status of other shareholders in the Stockholder’s Derivative Action is concerned, we can draw references from the legal provisions of foreign countries and take into consideration the practice in our country to allow other shareholders to participate the action, but to impose restraints on their participation at the same time. Where only a small number of other shareholders participate the action, they can be treated as joint plaintiffs; where a large number of other shareholders participate the action, the applicable rules should be similar to the rules applicable to the action involving a large number of representatives. Chapter Five Mechanism of Encouraging Stockholder’s Derivative ActionIn order to avoid such situation where the company refuses or neglects to bring an action and the shareholders of the company also neglect to bring an action, and in order to encourage the shareholders to subrogate the company to bring the action, we must reinforce the shareholders’own initiative and the function of the mechanism of the encouragement. This paper, based on the experience of legislation and judicial practice in foreign countries, indicates that the legislation should conform three incentive measures: first, the litigation fee for the Stockholder’s Derivative Action should be a fixed sum of money for each case; second, the plaintiff in the Stockholder’s Derivative Action should be compensated for his litigation fee; third, plaintiff shareholders should be indemnified individually in proportion.Chapter Six Mechanism of Restriction on Stockholder’s Derivative ActionIn order to prevent shareholders from bringing unjustifiable actions, the mechanism of restriction should be established. The main measures taken are to set up the prerequisite proceedings in the Stockholder’s Derivative Action and to establish the security system of the litigation fee. The prerequisite proceedings in the Stockholder’s Derivative Action implies that if the shareholders think that the interests of the company are infringed, before they subrogate the company in accordance with law to bring the action, they should ask the company to bring an action against the infringer so as to protect the interests of the company. The shareholders can subrogate the company to bring the action only if the company refuses or neglects to bring the action. The security system of the litigation fee implies that after the plaintiff shareholders bring the action to the court, upon the request of the defendant, the court has the authority to order the plaintiff in good financial conditions to provide security of certain amount of money to guarantee that the defendant will be able to obtain compensation for his litigation fee out of the sum of security provided by the plaintiff. Chapter Seven Special Problems Involved in the Proceedings of Stockholder’s Derivative ActionThe special problems involved in the proceedings of Stockholder’s Derivative Action include: (1) jurisdiction and notification of action; (2) jointer of claims, counter-claim and burden of prove; (3) self-incrimination, abandonment and conciliation; (4) suspension of litigation, dismissal of claims and statute of limitations; (5) res judicata and retrial of cases; and so on.In the end, based on analyzing the above-mentioned problems, this paper puts forward some specific suggestions to the legislation for perfecting the system of the Stockholder’s Derivative Action.更多还原