法律外文文献翻译-股东代表诉讼制度
Originated in Britain, the United States case law, and ultimately the development of law established by the U.S. shareholder lawsuit (Shareholder's Derivative Suit) system has been following the subject countries in the world, and now the world Bian to national company law have been provided for the system. China also established a Shareholder Litigation. But more briefly the relevant provisions of China's Company Law, currently the practice without the need to test, so be perfected.
First, the shareholders party to the proceedings on behalf of
(A) the plaintiff shareholder lawsuit
As the name suggests, the shareholders shall be shareholders of plaintiff litigation, including the common shareholders and preferred shareholders. In shareholder litigation, the other shareholders can participate in to become a co-plaintiff in the lawsuit, but as a shareholder of the defendant should be excluded. On behalf of the litigation, shareholder eligibility to become a plaintiff must also possess the necessary qualifications. Countries (regions) of different legal traditions, shareholder litigation on behalf of the plaintiff's qualifications are different. However, in general, national (regional) company law restrictions on the eligibility of the plaintiff mainly two aspects: First, holding time requirements, and second, holding the number of requests. The holding time requirements, common law countries have adopted "rules of the then shareholders", which 原文请找腾讯752018766优,文|论~文/网http://www.youerw.com , and not the company of their shareholders before the company filed by the representative of an infringement lawsuit. Co., Ltd. under China's current 180-day period.
Number of requirements in the ownership, common law countries and regions are basically no restrictions, but most of them set up good rules (GoodFaith), require a shareholder in the shareholder lawsuit filed by the company's right to exercise force, must be fair and adequate representative of interests of the company.
(B) the shareholder lawsuit on behalf of the defendant
Litigation from the representative of the background and the establishment of legal mechanisms on behalf of the fundamental purposes, the representative of the main defendant, litigation director of the company, controlling shareholders and other insiders, such as senior managers, supervisors and so on. Because they are the company's affairs and corporate management and supervision of the implementation of real people or dominate. However, the countries (regions) vary the provisions of this Law. For example, the U.S. shareholder lawsuit accused no restrictions, any person who may be against the interests of the company as the real defendant, but not limited to company insiders. Germany made a shareholder lawsuit accused the provisions are very broad. According to our "Company Law" Article 152 of the provisions of paragraph 1,2, company directors, supervisors and senior management may become shareholder lawsuit on behalf of the defendant. In addition, paragraph 3 also clearly stipulates: "infringement of lawful rights and interests of the company, causing losses to the company, the shareholders of the first paragraph of this article can be in accordance with the provisions of the preceding two paragraphs to the people's court proceedings."
(c) in the status of the Representative Suit
Shareholder litigation is a significant feature of the shareholders in the name of the company's interest to sue, and the final judge of the court the results of the company's binding. Therefore, the company is in the shareholder lawsuit in a very special place. Countries (regions) Law on the company's legal status in the proceedings the provisions of the same. In common law countries, the company occupies in the shareholder lawsuit dual position. Authorities refused to investigate because of the company against the interests of the company's decision, the company can not sue on behalf of the plaintiff. However, as is the shareholder lawsuit on behalf of the real plaintiffs, have essentially the right of appeal and in favor of the plaintiff, after the shareholders bear the corresponding legal consequences, it should be a shareholder lawsuit on behalf of the party. According to the general provisions of civil law and jurisprudence, in this case, it should be a third person or co-defendant. However, in common law countries and regions, it is very specifically used the company as a nominal defendant, and allowed to put forward various objections to the proceedings, as the real damage caused by the accused 1675