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On shareholder derivative action litigation costs borne

Author: YinZuo From: www.yourpaper.net Posted: 2009-10-31 05:23:52 Read:
Abstract: derivative litigation costs borne by setting stress map to achieve the balance between the interests of minority shareholders and company managers. First, to understand the rational allocation of the value of the derivative litigation costs, the value of the target to achieve fair and equitable, and efficient. Second, the derivative litigation expenses should be borne in which the main were defined. Third, the admissibility of the case of non-property expenses standard applies to derivative litigation cases. Finally, imagine Ru determine the scope of the litigation costs of litigation after the plaintiff shareholders compensation claims.
Keywords: shareholder derivative litigation; costing; fee compensation request

The derivative suit is the exercise of the right to appeal a minority shareholder of the company, and the establishment of the derivative litigation system is to solve the internal mechanism is difficult to solve the conflict of interest. Commitment to derive the cost of litigation is an important part of the derivative litigation system, this article tries to derive the cost of litigation proceedings bear some analysis.

A reasonable allocation derived the value of the cost of litigation

Rational allocation of shareholder derivative litigation costs and give full play to the value of the function of the shareholder derivative litigation system to protect the interests of small and medium-sized shareholders relief, as well as the important part of effective prevention of abusive lawsuits. Cost-sharing problem is derived core part of the litigation system, relations with the ability to motivate shareholders sue for the interests of the company; relations between minority and majority shareholders, whether the conflict of interest between shareholders and managers can get a fair and impartial solution; Also related to the company's ability to make up for the losses suffered by derivative litigation. Shareholder derivative litigation costs borne by setting should reflect the value of the derivative litigation system, its core is to protect the interests of minority shareholders derivative litigation cost-sharing to be around to protect the interests of small shareholders and the company's normal operating between the balance of interests designed to prevent abusive lawsuits, to promote the company's normal operation and management.
Commitments should reflect a fair and equitable values, and focus on the value of the effective target to derive the cost of litigation. First, the cost of the commitment should reflect the fair and equitable shareholder derivative litigation shareholders for the interests of the company or to stop the directors, officers, or other third party against the interests of the company and litigation. The cost commitment should not be a bona fide shareholder filed a derivative suit impede cost settings should be more conducive to the protection of the interests of small shareholders. Adequately protect the interests of minority shareholders under the premise, but also specific issues analysis, distinguish between the good of shareholders filed derivative lawsuits malicious to be treated differently for goodwill shareholders and malicious shareholders bear the standard set different fees, so as to reflect a fair and just. Second, the cost of litigation and commitment should focus on efficiency, efficiency lies in how to achieve the balance of the interests of minority shareholders and company management. The derivative litigation established essentially to protect the interests of minority shareholders derivative action filed some conflicts often associated with normal operation and management of the company, and therefore the derivative litigation fees should be set as a precondition in order to protect the interests of minority shareholders, while not impede the normal operation of the company management.
Reasonable distribution of derivative litigation costs, to protect the interests of small shareholders, and to prevent some of the ill-intentioned of minority shareholders by the shareholders' right to appeal and gain an unfair advantage, damage to directors, management and other legitimate interests. Reasonable allocation of the value is also reflected in between can help resolve internal mechanism is difficult to resolve the two conflicts of interest, conflicts of interest between the First, the company, the shareholders and managers; Second, the majority shareholder in the company and minority shareholders interests conflict [1]. Commitment to derive the cost of litigation is an important part of the shareholder derivative litigation system rational allocation is a powerful lever to address the balance between the interests of the small shareholders and managers, as well as small and medium shareholders with the largest shareholder derivative litigation costs [2]. The establishment of the system can not be established on the lawsuit filed with strict conditions, it will hinder the minority shareholder to bring a derivative action, is not conducive to the protection of the interests of minority shareholders.

Bear the main costs of litigation, shareholder derivative litigation

General civil litigation costs borne body, including the plaintiff, the defendant, as well as the legal representatives of the plaintiff, the defendant. Derivative litigation is different from the general civil litigation, derivative litigation to bear subject more "Company" main than general civil litigation costs. Derivative action plaintiff, the defendant's theories are still controversial, the company's position in the derivative litigation is debating.
The company is a very special position in the derivative litigation, the company can not become a derivative action plaintiffs, because the derivative suit is a lawsuit filed by shareholders in damage to the interests of the company has delayed in exercising the right of appeal of the company. Essentially do not agree on the virulence take action lawsuit. At the same time, the company also can not be a derivative action defendants. As derivative litigation defendant is the damage to the interests of the company, the company can not own damage [3]. Although the company is not a derivative action plaintiff or defendant, but may bear the legal consequences. Namely independent on the plaintiff shareholders, and independent of the defendant. So the company can be seen as independent participants in proceedings, and to derivative litigation bear the cost in most cases.
The plaintiff shareholders bring a derivative action should be the first bear court costs, and attorneys' fees, travel expenses and other costs associated with car borne during the proceedings. If the plaintiff can not afford the cost of litigation to the court, the plaintiff can prove its good faith prosecution, and do the payment difficulties by pre-paid. Case acceptance fees and other legal costs should the defendant in the case in favor of the plaintiff shareholders bear the litigation costs borne by the company. Against the plaintiff, distinguish the plaintiff shareholders goodwill and malicious. By the defendant to prove that the malicious circumstances include: the lawsuit filed by the plaintiff shareholders to lack its where the company or the shareholders of the company to benefit from the reasonable possibility of the case [3]; v. the defendant by the plaintiff shareholders did not participate in any the act complained of circumstances; case of malice by the defendant to prove that the plaintiff filed shareholder representative suit. When the goodwill of the plaintiff shareholders, litigation costs still incurred contrary malicious, all costs borne by the plaintiff shareholders should bear the corresponding liability. Third, the cost of litigation and calculate the standard

Shareholders bring a derivative action should apply to the court prepayment case acceptance fee, if the derivative action as a general property cases and the amount of the request of the plaintiff shareholders acceptance fee, will increase the burden on the plaintiff's, which will prevent The majority of the shareholder derivative right of appeal exercised. Examine the relevant provisions of the other countries of the world, roughly the following two approaches: First of all, according to the subject matter of litigation, mainly Anglo-American practice, that the plaintiff shareholders filed the request for the amount calculated in accordance with a certain proportion of the cost of litigation, which will make very huge litigation costs, adding to the plaintiff's burden [4]; Second, to determine the specific amount, mainly Japan and South Korea. Modified in 1993, 267 of the Commercial Code "new 4 The price of such a requirement," the shareholder representative action should the lawsuit be seen as non-property request. Litigation costs unified regulations for 8200 yen. "is the subject of whether the plaintiff shareholders seek compensation, shareholder derivative litigation cases are classified as non-property litigation and to determine a relatively low fixed costs. Such a lawsuit charging method can reduce the the plaintiff shareholder litigation cost burden, of great significance in promoting shareholder derivative litigation occurred. Korea considered as the shareholder derivative action litigation v. Price can not know, does not consider the request amount, all v. price as 1000 million won-printed tax (v. Price, 5%) [5].
For shareholder derivative litigation litigation costing standards, scholars most of that should be taken by non-property cases charge, that charge a fixed processing fee per the case [6]. I also agree with this view, China can learn from Japan's approach. The general derivative litigation involving the disputed amount is huge, and the plaintiff shareholder to bring a derivative action, to the interests of the company, the company received the interests of direct interest, received by each shareholder interests indirect interests. The ordinary property cases involving an amount in accordance with a certain proportion of the charge court costs, will lead to a huge case acceptance fee, so that the majority of shareholders to sue for the interests of the company and wish prohibitive.
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