【作者】 孙艳；

【导师】 王彦明；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 在现代公司法股东可以提起的三种诉讼中,股东派生诉讼属共益权,在本质不同于属自益权的股东个人诉讼和代表人诉讼。股东派生诉讼在世界各主要市场经济国家公司法中的设立,对保护公司利益和间接保护股东利益起到了重要作用,对改善公司内部治理结构、弥补公共监管机构资源和能力的有限性产生了深远影响,在保护公司投资者的投资热情和投资信心、保障公司正常发展、推动社会进步等方面有着很大的历史意义和现实意义。世界两大法系国家的立法对股东派生诉讼制度的构成要件均作出了类似但不同的规定。法院在实现股东派生诉讼的诉讼目的中发挥了重要作用,法院享有分配举证责任、依职权调查取证、对公司的通知责任、对未参加诉讼股东的公告责任、防止股东滥用诉权、抑制公司恶意诉讼等积极职能。我国2005年新修订的公司法正式引入了股东代表诉讼制度,但是这一制度的真正建立还需要在司法实践不断丰富规则、完善程序。笔者以股东派生诉讼制度的创立、完善为出发点,试从股东派生诉讼制度的起源、性质、适用范围、构成要件进行系统论述,以探究各国股东派生诉讼制度的发展脉络和发展前景,对我国设立、完善该制度进行了具体构思。更多还原

【Abstract】 Shareholders’derivative action, also called Shareholder’sRepresentative Action Derivative Litigation, is a kind of suit when the corporation refuses to take action against directors, officers ,or others for wrongdoing that has harmed the corporation,the shareholders who have legal qualification in the name of corporation bring a derivative action against the alleged wrongdoers. This regulation is a very important system in most market economic countries, it plays a influential role on protecting corporation’s benefits and shareholder’s interests indirectly. This thesis will start from the conception and development of shareholder’s derivative action, to study its historic root and current problems. There are three chapters in this thesis, the basic content as follows:Chapter one is the summary of shareholder’s derivative action. Firstly, it introduced the origin of shareholder’s derivative action:it was originated from law of equity in England for the first time, developed fully in United States and now becomes a kind of important system in the world rapidly. Secondly, it defines the conception, nature and traits, indifferentiates between derivative suits, shareholder representative suits and shareholder suits. Shareholders’derivative action, also called Shareholder’s Representative Action Derivative Litigation, is a kind of suit when the corporation refuses to take action against directors, officers, or others for wrongdoing that has harmed the corporation , the shareholders who have legal qualification in the name of corporation bring a derivative action against the alleged wrongdoers. Talking about the character of shareholders’derivative action, there are three academic theories:self-benefit right theory,benefit-to-other right theory, altogether-benefit right theory. The author thinks we should apply altogether-benefit theory. Shareholders’derivative action system has four characteristics: Shareholders’derivative actions produces based on the shareholder in company’s legal relief request power. The shareholder derives the lawsuit only when the company refuses to exercise in its lawful right. The plaintiff who derives the lawsuit is the company’s shareholder, person or the multi-people joint. The legal consequences of the lawsuits is undertaken by the company. There are three kinds of suits claimed by shareholders in modern company law: direct suits, representative suits and derivative suits. Shareholders’derivative action has totally different essence with shareholder direct suits and representative suits. The accusation right of shareholder direct suits and representative suits is a kind of self-benefit right. Shareholders’derivative action and shareholder representative suits are different on the legislative goal, background ,the benefit ownership of accusation, the interests belonged to and the measure of law almsgiving. Shareholders’derivative action and direct suits are different in the cause of suits, characteristics, procedure rule and relief measure, sometimes, they could convert and combine. Thirdly, the thesis introduced the function of Shareholders’derivative action: Shareholders’derivative action system has the functions of after almsgiving and pre-restriction, it can get appropriate economic compensation or other non-economic relief promptly, therefore, recover the company and its shareholders’legal interests, it also increase the cost which making illegal interests from the company by the company insiders, it has prerestriction effect. In fact, how the two functions performed, they had a huge difference between different countries, due to different law systems, cultural customs and social ideas. Setting up Shareholders’derivative action system has significant meanings. In the human long history, most democratic politic countries in the world pursue majority principle. Along with Europe Renaissance movement, the bourgeois revolution by the free competition time to the monopoly time’s unceasing development, the law has several development phases several development phases several development phases :experienced voluntary standard time, right standard time, the social standard time.Social justice and essential right are recognized by more and more people, based on modern democratic idea, democracy not only insist on the principle that decision must be made by majority but also protect minority. Company systems, based on thinking of protecting minority’s right under the principle of decision made by majority, give special right to minority shareholders in order to against misusing of majority principle. Establishing Shareholders’derivative action, to prevent inner people’s control caused by separation of ownership and management right, to prevent board directors misuse of authority against the legal right and interests of the company and the small shareholders, to seek the balance of equity and efficiency between different interest parties, to protect middle and small shareholders interests, to fetch up company’s inner shortage of management construction , to make up the limitation of public supervising authority resource and the ability limit, rare taking grate effects. To set up Shareholders’derivative action system in our country will have great current and historic meanings for perfecting China’s Corporation Law and effective capital market.Chapter two is about constitutive elements of Shareholders’derivative action. The thesis elaborates the important elements in this system, comparing with foreign legislation and the domestic legislation, and it elaborates the procedure elements and entity elements. It explains Shareholders’derivative action from the procedure elements to entity elements. It provides for the prosecution shareholders are true, cautious and goodwill for the interests of the company in majority countries. What our country stipulated is to the direct stake and the concrete fact, reason recognizing. The entity elements explain plaintiff qualification, defendant, security for expenses, etc.Chapter three elaborates the lawsuit system’s judicature for the shareholder to be suitable with the legislation consummates and some prefects of the system. Firstly, it elaborates the shareholder to derive the lawsuit system’s judicature to be suitable. The thesis discusses the status and function of court in Shareholders’derivative action. Court plays key role in applying of Shareholders’derivative action. The active functions of court are to distribute the duty of proposes evidence, to survey and collect evidence, to inform company, to make bulletins, to prevent the company’s legal interests, to avoid misusing suit right by shareholder, to restrain company baleful suits. Judges have special right for circumstances considering and making decision in Shareholders’derivative action trial. Secondly, the author imagines some perfect Shareholders’derivative action of China. The author thinks the principles of Shareholders’derivative action should be followed by the principle of protecting minority, the principle of balance of company self-management and country’s intervention, the principle of connection of encouraging suit and preventing gamble suit, the principle of giving attention to both learning foreign experiences and adjusting domestic law systems. Some proceeding problems or of Shareholders’derivative action systems in China, such as domination, charge payment, compromising system, suit effectiveness for a given period of time, compensation to relative people should be perfected urgently.更多还原