【作者】 宋伟林；

【导师】 蔡立东；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 合理确定股东派生诉讼的原告股东资格是充分发挥股东派生诉讼制度的价值功能,有效预防股东滥诉的重要环节。国外发达的资本主义国家,凡规定股东派生诉讼制度的,都对原告股东资格做出相应的限制性规定。我国公司法虽然已经引进该制度,但对原告资格的规定过于笼统,缺少实践的可操作性,而且有些规定不尽合理。例如,对原告股东持股数量的要求和持股时间的要求,不能起到遏制恶意股东派生诉讼的功能;缺少对原告股东公正性的要求,不能对公司利益和与原告股东处于同等地位的其他股东利益进行有利的保护。本文通过比较法考察的方法借鉴国外先进的立法例和司法实践经验,对股东派生诉讼原告资格制度,从理论和实践的层面进行全面分析,并结合我国具体国情提出相应的修改建议,力图使我国的股东派生诉讼制度发挥应有的功能。更多还原

【Abstract】 The shareholder derivative suit plays an important role in protecting shareholders’management position in the corporation and prefecting the structure of the corporation’s governance. However, the system makes some breakthroughs because it is not in accordance with the basic principles of the corporation law,such as the independence of corporation entity, the majority rule and the autonomy of corporation. So the shareholder derivative suit is a sharp sword by which well-meaning shareholders can protect the interest of the corporation if properly designed. It may be a tool by which the malice shareholders can interfere with the legal management of the corporation and pursue their personal benefits if improperly designed. So the key point of the syetem is to how to choose the equation between encouraging the positive shareholder derivative suit and restricting the strike suit. The technique way is to how to stipulate the plaintiff qualification. This paper analyzes the current chinese relevant legislation situation on the syetem and references to foreign theory and practical experience. On this basis, the article provides some advices how to perfect the system.The first part of the article is the instruction of basic theory of plaintiff system of the shareholder derivative suit. Firstly The article analyzes concept and nature of the shareholder derivative suit that can make readers know the system macroscopicly. Then some reasons should be considered which are how to encourge the positive suit or restricting the strike suit, how to equate autonomy of the corporation and justic intervene,how to cut litigation cost when which one can be definited as the plaintiff. At last,the article talks about the restricted reasons for which to definite plaintiff qualification. Because the derivative suit is the design of corporation suit rights flexibly. The system makes some breakthroughs in some aspects. So to treat the relationships between basic principles of coporation law and the system of deriative suit correctly, and to design the plaintiff system of the shareholder derivative suit properly, the restrict reasons for which to definite plaintiff qualification must be considered. These reasons are to how to maintain independent corporation entity, how to encourage the enthusiasm of the corporation operators,how to maintain autonomy of the corporation and how to protect the interest-related persons.The second part of the article mainly discuss the basic modes of the plaintiff scope which are the pure shareholder doctrine that is adopted by most countries and the interest-related doctrine. The pure shareholder doctrine is under entity legal theory which is shareholders’rights theory and procedure legal theory which is the broad parties theory. Because the nature of shareholder derivative suit is to protect the interests of the corporation while the interests of shareholders was protected for the positive correlation between shareholders and the corporation. So any shareholder who has the interest in the corporation should have the plaintiff qualification. But the mode of the interest-related doctrine has two problems. First ,there is no necessity in extending the range of the plaintiff shareholder. Second,there are problems in the legislative techniques and judicial practice.The third part of the article mainly discusses the proper conditions of plaintiff qualification. Firstly,the article thinks that the condition shareholders must hold legal amount shares was easily evaded in an associated way by the malice shareholders so that the syetem could not restrict strike suit. Secondly the article analyzes shareholder identity condition. The passage thinks that any shareholder who has interest-relation with the corporation has the right to bring up the derivative suit. Next the article analyzes the time condition that when and how long shareholders hold the share. The passage analyzes the advantages and disadvantages of the rule of contemporary ownership in the US and the requirement of continuous shareholder status for some time before the suit in the civil law country. At last, the article analyzes the shareholder fairness and proper conditions. Because the derivative suit has the dual nature Since it involves a consideration of the shareholders’right and standing to sue on behalf of the corporation. So the plaintiff shareholders should fairly and properly represents the other shareholders and corporation. But our country has not stipulate the same rules that is an omission in the corporation law.The fourth part of the article mainly analyzes the system of plaintiff qualification of the derivative suit in our country while the paper provides some proper advices how to perfect the syetem. The article thinks corporation law has not definited the plaintiff scope clearly and the definition of suit right of the derivative suit is not in favor of minority shareholders. The provision that the requirement of continuous shareholder status for some time befor the suit is unuseful in restricting the strike suit. The corporation law lacks the requirement of plaintiff shareholder fairness and proper. Then the article gives some advices how to prefect the syetem. Firstly, the derivative suit right is definited as alone shareholder right. Secondly, our country should draw lessons from the advanced rule of contemporary ownership in the US. Thirdly, corporation law should stipulate the fairness and proper requirement of the plaintiff sharenholder in entity law and the procedure law.The shareholder derivative suit is an imported product in our country corporation law practice. The positive effects of the syetem depend on judicial practice workers’further research and exploration and how to make the syetem localilzation and become one part of our country law syetem gradually. Because our country shareholder derivative suit has just on the way, many theories and the practice question waited for being discussed by the legislators and scholars.Therefore, this article mainly discussed some questions on the plaintiff qualifications by referring to the overseas judicial precedent and gave some unmatured legislative advices which wait for the furture examnation in the judicial practice.更多还原