【作者】 彭帆；

【导师】 王彦明；

【作者基本信息】 吉林大学 ， 法律， 2008， 硕士

【摘要】 2006年1月1日,《中华人民共和国公司法》正式启动,一项新的制度被纳入了我国的法律体系——股东派生诉讼制度。这一制度的建立对于我国社会主义市场经济的发展具有重要的意义。然而任何一种权利的设置都存在一定的风险,股东派生诉讼制度则存在着权利滥用、诉讼投机等危险,会给公司的正常运营管理造成不良影响。先诉请求制度就是针对股东派生诉讼所设计的制动装置。这种立法上的制度设计在试图寻求一种平衡:在保障中小股东利益、维护公司根本利益的同时,又防止一些好事股东的滥权、恶讼,浪费国家司法资源的行为。凡是规定了股东派生诉讼制度的国家,就会有先诉请求这一前置程序的制度安排,在股东派生诉讼全面发展的美国,先诉请求制度的规定非常具体、全面,很值得我国立法借鉴。同时,由于大陆法系国家和我国的法律体系、公司治理结构等方面的相似性,其股东派生诉讼和先诉请求制度的立法经验对我们更是有指导意义。本文将全面介绍美国、日本、我国台湾地区的相关规定,结合中国的实际情况,以探讨我国的股东派生诉讼先诉请求制度的发展与完善。更多还原

【Abstract】 Shareholders’ Derivative Suits has developed widely in western countries for more than a hundred years. It is now a conventional corporation system in minority shareholders protection and is a constitution in corporation governance. The demand made to the company organ before the shareholders raise a suit is called the pre-suit requirement, which is a necessity out of derivative suits’ character. As to China, the derivative suits system is a new one, introduced in the 2005 Company Law for the first time, in which the pre-suit requirement is mainly regulated in article 152.But the article itself is so general and the practices in China deficient, that we need to study the western rule more attentive to perfect China’s company law and prepare for the actual suits. There are many questions worth studying in the derivative suits system, and this dissertation focuses on the pre-suit requirement, hoping it make sense.Since USA erects a relatively mature rule system in this area, this dissertation is making researches mainly on the basis of the American statutes and case law, and the particular conditions of China as well. It consists of two parts: first the introduction, and then the text. The structure of the text is as follows:Chapter I is a general introduction of the whole derivative suits system. In this part, the author concludes its litigation and the theory basis, based on which, points out pre-suit requirement is a must before litigation. The author reveals history root of it on the basis of history inspection. And explaining the reasons for the establishment of Shareholder Derivative Suit procedures. The author believes that the establishment of Shareholder Derivative Suit procedures mainly for our reasons: One is to protect the independence of corporate personality; second is to comply with the business judgment rule; Third, in order to prevent speculative litigation by some malicious shareholders; litigation.Chapter II mainly discusses the theory of the pre-suit requirement, including two parts: the author will introduce the rules about preparatory process of Shareholder Derivative Suit made by foreign countries, among them, the most developed and completed legal is the United States, forming the principle of " do all internal remedies", accumulated a wealth of case law and doctrine. The shareholders are asked to get company’s board, shareholders also have to get permit from the committee according to the traditional corporation law. Board of Governors or Independent Litigation Committee which set by the board can effectively block derivative litigation in accordance with reasonable business standards. Britain is the birthplace of shareholder derivative litigation. The rule formed by the case of Foss v. Harbottle have a far-reaching impact, most of the British jurisprudences and doctrines are made by it and the exceptions. In the United Kingdom, when the company’s shareholders filed derivative lawsuits, it’s not mean that he made a formal request on the board, but proved to the court that non-perpetrator took controlled status in the company.Chapter III is the procedure analysis, focusing on the pre-suit demand. This part involves the form, the accepting organ of the demand, and the effect of the decision made by the organ, etc. And though all these, there are applications related to China’s conditions.Chapter IV is the conclusion of the dissertation, analyzing China’s litigation on the pre-suit requirement, and makes some improvement Suggestions. "Company Law" of our country. And here the writer also brings up a few points of view about the reconstruction. First, China should break up the convention of using the legislation routine of Civil Law Countries and boldly introduce the independent litigation committee system in the practice of the national legislation, combining actual situation of China’s corporate governance ;secondly, China should give corporate the authority to stop the valueless derivative action, in order to realize the real value of the procedures prior shareholder derivative litigation system ;third ,China should rationally design the process at the request of the plaintiff shareholders, and give the court the right to judicial review; Finally, about the unclearness of the prescription about the conditions required by the excusing-request our "Company Law" should the legislative method of combining abstraction and enumeration.更多还原