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Shareholder derivative litigants System

Author: RenLing
Tutor: XuWeiDong
School: Changchun University of
Course: Civil and Commercial Law
Keywords: derivative suit status of parties the balance of interests
CLC: D925
Type: Master's thesis
Year: 2010
Downloads: 52
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Abstract

The system of Shareholder’s Derivative Suits is a special relief system in company law, and it is an important way to protect the interests of company and minority and medium shareholders. The system aims to balance the growing power of major shareholders, senior management of companies and the staff who control of company. At the same time it also plays a role in improving corporate governance. The parties of Shareholder’s Derivative Suits are subjects that start the proceedings, and are the bearer of rights and obligations. Studying the special nature different from general litigants is logical starting point to realize the’ value of shareholder’s Derivative Suits. This paper aims to analysis the theory and practice of this system, comprehensive compare the regional experience in different countries and regions. Discuss further the system should follow the values in our country, and also put forward measures to perfect the litigants system of Shareholder’s Derivative Suit. The article focuses on the problem of determining the status of parties reasonably. Discuses on the relevant legal basis, and analyze relevant national legal system. Introduction part of the paper briefly introduces the research background, purpose and significance of thesis research, while describes the research methods, and analyzes the value and important role of the system of Shareholder’s Derivative Suits especially the party system. Conclusion of the text colligates the whole article, and summarizes the main point thesis of writing.This subject is divided into three parts.Part one introduces the origin of the system of Shareholder’s Derivative Suits. Start with the concept and the nature, illustrating the legal basis of the right. Then compares distinctions between legal representative and Shareholder’s Direct suits. Pointed out that the system is a special form of action, further define its unique characteristics, and that reflecting the intent and value of design.The second part discusses on the status of parties. First, the plaintiff as a special party in the system of Shareholder’s Derivative Suits, different countries’company law limited it, which can be argued from three aspects, namely a balance between the interests of shareholders, a balance between companies and shareholders’interests, and a balance of protecting the right and preventing the abuse of the right. Studying different countries’legislation on the plaintiff, and major analyze shareholding ratio, principle of holding at that time, the principle of the minimum holding period, the principle of continuous ownership, and the principles of the relevant provisions to relieve myself. Research the rationality limitations, necessity and feasibility of terms and conditions. Second, introduce the legislation represented by the United States, Britain and Japan, and obligations revolve around fiduciary-duty and duty of care. Again, parsing the legal principle of the system of Shareholder’s Derivative Suits, assessing the point of view on company as the plaintiff, the nominal defendant, the third person, and participate in proceedings respectively. Finally, investigate the arrangements about the status of the other shareholders. Specific its equal status with the plaintiff shareholders, and give a full consideration to save litigation costs.The third part comments on the legislative status quo of the party system in the system of Shareholder’s Derivative Suits first. That exists problem on restricting the plaintiff shareholder too hard, the subject too broad, and the scope of the object is not clear enough and so on. Secondly, starting from our judicial practice, propose solutions on perfecting legislation, to-ensure achieving the aim on protecting the interests of companies and minority and medium shareholders, and hope to find the best solution for a reasonable standard about our Shareholder’s Derivative Suits.

Shareholder derivative litigants System

Abstract

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