【作者】 林健权；

【导师】 傅穹；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 2005年修订的新《公司法》第152条规定对股东派生诉讼作出了明确的规定,这一规定赋予符合一定条件的股东为维护公司利益代表公司提起诉讼的权利,是公司诉讼制度的重大突破。作为一种事后救济措施的股东派生诉讼是公司中小股东权益保障的最终救济方式,在保护中小股东权益,维护公司合法利益和监督董事、高级管理人员及控制股东行为等方面发挥了重要作用。但是,现行公司法中法律条文内容过于原则和简单,对派生诉讼审理中相关程序和实体问题缺乏可操作性的具体规定,加之司法实践中,还缺乏具备该类案件的审判经验和具有指导作用的典型案例。为了更好地认识、理解、适用股东派生诉讼这一新兴的公司诉讼制度,本文基于公司法的基础理论及相关司法实践,就股东派生诉讼制度的形成和发展、特征、基本原理进行分析,对其在审判程序中的具体适用、实体举证责任的分配和行为界定等问题进行了研究,为其在审判实践中的适用提供一个有效可行的了理论导向和方法。本文一共分为四章,第一章旨在对股东派生诉讼的基本原理和在我国的形成与发展进行基本分析,是我国新《公司法》确立股东派生诉讼的前提和背景;第二章介绍了派生诉讼作为民事诉讼程序中一种特别的诉讼,对其原告、被告和公司诉讼地位的确定、诉讼前置程序、诉讼时效、管辖权的确定、诉讼费用承担等特别问题在审判程序中的具体适用进行阐述;第三章是本文的重点,着重论述了派生诉讼诉讼标的原因事实行为举证责任的分配以及具体行为的界定,对原因事实的构成要件进行了深入的分析归类,提出具体的适用标准,为实际操作中判断某行为是否构成法律规定的原因事实提供了依据,对派生诉讼在实体审判中的适用提出了尝试性意见;第四章对派生诉讼审判终结的表现形式即派生诉讼的裁判归属进行了论述。更多还原

【Abstract】 As for the derivative action, Article 152 of the new Corporation Law amended in 2005 has made a definite regulation that entitled the shareholders corresponded with certain conditions represent the company to raise appeals for maintaining the benefit of company. This regulation also has an important improvement of the Corporation Procedure System. As an ex post facto remedial measure, derivative action is the final remedial method to guarantee the medium and small sized shareholders’right and interest, which has an important effects on protecting the medium and small sized shareholders’right and interest, maintaining company’s legal benefit and supervising directors, executives and controlling the shareholders’actions. However, the articles of current Corporation Law are over in principle and oversimplified, which cause the relevant procedure and actual problems lacking in operable detailed regulations. Meanwhile, during the judicature practice, it is also short of trial experience with this case and typical case with guide function. In order to make better realization, comprehension and application of this growth Corporation Procedure System, based on the basic principles of Corporation Law and relevant judicature practice, it analyzed on the formation and development, characteristic, basic principles of the derivative litigious system. Simultaneously, it researched on the problems of the distribution on detailed application, actual verification responsibility during the trial procedure and action delimitation, etc., which provided an effective theoretical guide and method for the application during the trial practice.There are four chapters in the paper. The first chapter introduces the basic principles of derivative action and formation and development in china, which is the premise and background of the derivative action established by the new Corporation Law of our country. Firstly, section 1 discusses the formation and development of the derivative action in abroad, theoretical foundation of the derivative action and basic characters of the derivative action. Then, section 2 proves the necessity on establishing derivative action in our country oriented to the derivative action practiced in legislation and administration of justice. The second chapter expounds the detailed application of derivative action as a special litigation in civil procedure during the judicial procedure on confirming the position of plaintiff, defendant and the company, appealing for the prefixed procedure, undertaking litigation prescription, litigation cost. It is divided into four sections. Section 1 elaborates on the requirement and limitation of plaintiff’s stock keeping quantity and stock keeping time, bring forward Clear-hand principle and well-intentioned factor for preventing malicious litigation to make sure the other shareholders’position in the derivative action. Section 2 makes sure the scope of defendant, enabled directors, supervisors, executives and the people who have invaded company’s interest to be the defendant of the derivative action by the new Corporation Law. Section 3 shows the position of the company in the derivative action under the framework of civil procedure. In the derivative action, the company is located to be special third people without independent request, which can initiative take part in the lawsuit, and can be appended by the court accordance with official powers, also. Section 4 analyzes special problems on the litigation procedure. The problems includes prefixed procedure of exhausted internal relief of the company, governors of the derivative action confirmed under the current civil suit frame, jurisdiction and litigation cost, guarantee and compensation system, restriction of the shareholder’s litigation right to the plaintiff during litigation, prescription system of the litigation, etc.. The third chapter is the main part of the thesis. It emphatically discusses the distribution of verification responsibilities on derivative litigious object and delimitation of causative actions. Moreover, it analyzes and classifies on the factors of causative fact and put forward detailed application object, which provides references for judging some activities whether composed the reason and the fact regulated by the laws or not and provides a trial suggestion to the application of the derivative action during practical judgment. Section 1 is a general introduction on the object of derivative action and the type of litigation request pose to the court by the plaintiff in according to the causative fact. Section 2 defines the actions oriented by derivative action as the causative action. At the same time, the causative fact of the derivative action is divided into three types. Firstly, it expounds regulations on offending against law and procedure by directors and executives, conducts of invading the company’s right and interest. Secondly, it discusses conducts of invading legal right and interest by incidence relational person. Thirdly, it formulizes conducts of invading the company’s legal right and interest by irrelevant relational person, which have made detailed analysis on the factors of the three kinds of conducts. Section 3 analyzes the distribution of the verification responsibility of causative action, and the delimitation of the causative action, the justice used freely discretion to distribute verification responsibility of the derivative action scientifically in terms of fair, honest credit and the three-factor of verification ability of the litigant. This section lists many typical causative actions to introduce the distribution of the verification responsibility and the action delimitation standard, which has strength operability during judicial practice. Furthermore, the justice has brought forward perfect suggestions on the deficiency of causative action delimitation. The fourth chapter expounds upon the expressive form of the derivative litigious trial finality, in other words, that is the jurisdiction of derivative action. Section 1 shows the judgment to the plaintiff, winning lawsuit or losing lawsuit. In the judgment of winning lawsuit, the payment includes stand the loss, return the property, etc., which should be given by the defendant in the litigation. In the modification litigation, it should be to terminate or repeal contract or to judge the opposite parties of the contract pay equally and to judge the relationship of the contract invalid in the confirmed lawsuit, etc. In the judgment of losing lawsuit to the plaintiff, it should be to reject the requirement of appeal, and the plaintiff should undertake the cost of lawsuit and the reasonable cost occurred on the people who have to take part in the litigation such as the accused directors, supervisors, managers and relevant executives. Section 2 is coordination, repeal and rejection of the lawsuit. As for the coordination and repeal of the plaintiff shareholder, the court should make necessary investigation to avoid harming the corporate and other shareholders’legal right and interest. Meanwhile, there are several situations of rejecting the appeal. Section 3 elaborates already sense of the judge in the derivative action. Once the judgment of the derivative action became effective as soon as possible, other shareholders cannot put forward the derivative action again with the same reason.更多还原