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The Study on Proceeding Structure of the Shareholders’ Derivative Action

Author: HuangXueZuo
Tutor: ZhangXueZhe
School: China University of Political Science
Course: Comparative Law
Keywords: Shareholder derivative action Litigation structure Litigation structural elements The Litigation structure patterns
CLC: D922.291.91
Type: Master's thesis
Year: 2010
Downloads: 72
Quote: 1
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Abstract


Shareholder derivative litigation system equitable originated in the Anglo-American countries after countries have legislation to establish the system. China in 2006 before the implementation of the new Companies Act, the legislation has not been shareholder derivative litigation system requirements, this legislative gaps to bring a lot of difficulties in our judicial practice. It is aware of the shareholder derivative litigation systems in the interests of minority shareholders protection of practical significance, and finally of provisions in the new Companies Act a shareholder derivative litigation system. However, when the shareholder derivative action research, can not ignore the shareholder derivative litigation system is, after all, a kind of litigation the way, the implementation of the system itself eventually to return to the proceedings, which requires the specification of the procedural law adjusted accordingly so that the coordination of the substantive law and procedural law. Therefore, in a simple description of the development of historical and practical significance of the shareholder derivative litigation, this article attempts to shareholder derivative litigation system into the procedural norms under the theory of deep levels of specific systems. Shareholder derivative litigation litigation structure to the main line, from the breadth of the litigation structure elements, the depth of the structural elements of an action, lawsuits structure built concept of shareholder derivative action on the specific system and the system in support of the theory behind the ordinary civil system compared to what aspects of change. Lawsuit main structural elements with the parties and the court, litigation structure elements change, mainly referring to the deepening of the expansion of the scope of the parties and the parties restrictive requirements, and for this reason the shareholder derivative litigation proceedings particularity of the structural elements, the traditional theory of the parties is whether this system This article has discussed in detail explain? Shareholder derivative action litigation structure to build the concept of different extremes, the first is that the application of the shareholder derivative litigation that may arise, that is, or flood, or reduced to a dead letter. In order to prevent such an extreme generation, it is necessary to build the litigation structure, the use of economic interest as a lever to balance incentives and defense mechanisms. Shareholder derivative litigation system embodies the national judicial intervention for the company's autonomy, which will be a limit exists, so the balance of autonomy and national right to judicial intervention has become necessary. Patterns compared to the traditional structure of the civil litigation on the the litigation structure like state shareholder derivative action features in many aspects, what is different? Article also do a Analysis; discusses the process, this article will be conscious to introduce advanced foreign legislative experience; Finally naturally concluded, that in legal transplantation process and learn from, can not see the trees but not the forest, one-sided understanding of a system, rigid introduced, but rather a comprehensive grasp, so as to build up The harmony of the legal system.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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