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On Analysis and Discussion of shareholder litigation system

Author: HuaYunPeng From: www.yourpaper.net Posted: 2010-04-28 00:01:26 Read:
Paper Keywords: derived from shareholder lawsuits direct action lawsuit
the paper Abstract: This article is in our existing shareholder litigation system analysis of the same time, our shareholders Suit System suggestions and comments.
O Introduction
As social and economic development and progress, the company has become an increasingly important market players in the development of the company's practice, a variety of disputes is also more and more. Corporate disputes, conflicts of interest between shareholders also accompanied by a legal phenomenon, to resolve this dispute only through the company's own checks and balances is not enough to complete the legal regulation and resolve. Development and improvement of shareholder litigation system more and more attention, China's "Company Law" also made the relevant provisions of the shareholder litigation system. I do some explore and analyze the existing shareholder litigation system.
shareholders concept of litigation and the relevant provisions of our laws
Shareholder litigation is based on the identity of all of its shares to shareholders on the company's directors, supervisors, managers in the performance of their duties, the proceedings on violations of the rights and interests of its shareholders and the company is indolent or reject investigated corporate governance structure members or others should the company the responsibilities of the proceedings, the interests of the company.
The legislative provisions of our laws on shareholder litigation system embodies in Law 22,34,75,144,150,152,153,183 bar. 22,34,75,44,183 rights of the shareholders of the two types of eight specific provisions: (1) from usufruct include: Shareholders require the company to acquire the right of action of the options; shareholders to request access to the accounting books of the right: shareholders the right to start the public notice procedure: the rights of shareholders to maintain their rights. total usufruct include: the request of the shareholders revoked right to resolutions of the meeting of the company; shareholders 'request for judicial dissolution of the company's rights; shareholders request the company the right to sue; shareholders' right to sue. In the two types of shareholder lawsuits, the provisions of Article 153 of the Companies Act the shareholders directly Lawsuit. Article 150, 152 of the Companies Act provisions the shareholder derivative Lawsuit.
shareholders direct action and derivative litigation Comparative Study of
The world Companies Law provides for two basic types of shareholder litigation system, namely direct shareholder litigation system and shareholder derivative litigation system.
2.1 direct shareholder litigation system overview of the direct action of the shareholders, the shareholders for their own interests based on the status of the shares of all other violations of their rights and interests of the Company, the directors, supervisors or other shareholders lawsuit brought. It is the nature of an action brought by the shareholders for their own interests, is a self-usufruct. China's Company Law) 22,34,75,144, companion 3 provides shareholders white usufruct Based on this provision, the shareholders may exercise the right to direct action, the company and its managers is to prevent abuse of the rights of the Company to the detriment of the minority shareholders interests, and the lack of corporate governance structure plays to make up for the role and use of the neutral position of the Court to resolve the dispute.
2.2 shareholder derivative litigation system overview shareholder derivative litigation, when the interests of the company by others, especially by the controlling shareholders, directors and other senior management personnel against indolent hold infringe responsibility to meet the statutory requirements shareholders in its own name for the interests of the company against people sue system.
China's "Company Law" 15O, 152 stipulates that a shareholder derivative litigation system, the law provides for pre-procedural requirements of the shareholder derivative litigation, that is, before the proceedings should be exhausted internal remedies. Submit a written request to the board of directors or executive director, the board of supervisors or supervisors sued only in these institutions refused to prosecute or not to prosecute when exceeded the statutory limit Shareholders may exercise the right to appeal. The results of the shareholder derivative litigation in three ways: First, in favor of the plaintiff, that the defendant compensation directly to the company, in favor of the shareholders may request its compensation for reasonable expenses, such as litigation costs. Against the plaintiff, the plaintiff litigation costs to take care of themselves and to compensate the defendant responding to the reasonable expense incurred. Three reconciliation withdrawal.
2.3 Shareholders direct action and derivative litigation distinction
2.3.1 litigation purposes. Shareholders filed a lawsuit because their interests are violated or there is a risk of abuse. Direct action shareholders lawsuit filed because personal interests are infringed, the shareholders are the direct victims of the proceedings in order to protect their own interests. Derivative litigation, litigation was filed by the company, the company is a direct victim of the wrongful act, but the losses are bound to cause some damage to the interests of the shareholders, the shareholders are indirect victims. The name of the company by the shareholders when the failure to prosecute for statutory reasons, can sue. Shareholders direct action from the shareholder derivative litigation stems from shareholders as the shares of the status of all shareholders as the dual identity of the owner of the shares and the company representative. The purpose of a derivative action brought in to protect corporate interests at the same time, indirect safeguard the interests of the shareholders.
2.3.2 The right of action are different in nature. Shareholders direct action lawsuit brought by shareholders for their own interests, the exclusive right of action of individuals, is a self-usufruct. Shareholder derivative litigation is a company subject to inappropriate behavior against conditions, the premise of the company is not actively exercise of the right to appeal, in order to safeguard the interests of the company and brought the total usufruct.
2.3.3 in favor of the interests of vesting. Direct action, the plaintiff filed a lawsuit based on their own interests, vested interests in favor of the plaintiff shareholders. Derivative action, the plaintiff in the lawsuit filed based on the interests of the company. Direct interest attributable to indirect benefits attributable to shareholders.
2.3.4 proceedings. Direct shareholder litigation the ordinary Civil Procedure, the lawsuit filed according to the Civil Procedure Law. Shareholder derivative litigation. Where's rights are being unreasonable infringement case, the conditions of the shareholders may bring shareholder derivative litigation the the plaintiff shareholders is the name of the plaintiff, special pre-proceedings principle due to litigation involving the interests of the company as a whole, the original, The defendant does not allow unauthorized reconciliation, the plaintiff shareholders reconciliation or withdrawal shall be approved by the court and shall have the obligation to the other shareholders to disclose matters related to this.
2.3.5 litigation legal consequences. Direct action, the shareholders are borne directly by the outcome of the litigation, the plaintiff shareholders' entitlement to the form and essence of the right to appeal in favor of the plaintiff and against all benefits or risks attributable to the plaintiff shareholders, in favor of the shareholders, will receive compensation. Derivative action, the plaintiff shareholders have the formal right of appeal, the substance of the right to appeal attributed to the company, the case in favor of the shareholders, for the benefit attributable to the company, its shareholders can not for direct compensation. If the plaintiff shareholders against the decision in that case is also effective, that is, other shareholders and the company shall not be sued again for the same reason.
3 of shareholder derivative litigation
The 152 shareholder derivative litigation system in China's "Company Law" to make provisions, but this provision in limiting the derivative action to prevent abuse derived Lawsuit did not make a detailed and comprehensive provisions of the shareholder derivative litigation risk of abuse , may become the provisions on the system and can not play the actual role.
improve our shareholder litigation system thinking
With the continuous development and improvement of China's social progress and the socialist market economy. The company has already become an important market players, and shareholders is an important part of the company. The company is funded by shareholders and development, the protection of the rights of shareholders has become increasingly important and increasingly high requirements.
First of all, the most vital interests of the shareholders of the company, the biggest motivation to engage in behavior to prevent damage to the company and their own interests. Improve shareholder litigation system is not only to protect the interests of shareholders and shareholder litigation, can also be found in the corporate governance structure defects and deficiencies.
Second, improve the system of shareholder litigation in China can be accumulated the corresponding judicial experience, thus promoting the further development of legislation to improve our legal system.
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