法律外文文献翻译-股东代表诉讼制度 第3页
(C) the cost of litigation guarantee system
To prevent abuse of the shareholders on behalf of shareholders litigation, reduce the company's directors, supervisors and other objects to be prosecuted and the company itself unnecessary interference, many countries and regions for the system of company law set up preventive systems, security systems that the cost of litigation. Legal security for costs, is the court finds that the plaintiff shareholders, the shareholders filed suit on behalf of a lack of reasonable grounds, the court may order the plaintiff shareholder to provide certain guarantees to the defendant to the plaintiff shareholders lost when the defendants bear the reasonable compensation for legal costs. This means that only if the court finds that the action is obviously not a reasonable or clearly do not have real meaning only when required to provide security, or do not provide security. Security system, the cost of litigation began in 1944, the New York State Law. Affected, many U.S. states (about 1 / 3) of the Companies Act explicitly provides for the system. However, the system is mainly used to prevent the abuse of minority shareholders the right to appeal, so a lot of states were strictly applicable to the Company Law.
China's 2005 "Company Law" in the system into shareholder lawsuit, litigation is not clear that security for costs. But the theorists and the judiciary generally agreed that the cost of litigation should be established on behalf of a security system to prevent Fan Gudong action was being abused. Affected by this, "explained Law (2) (Draft)" Article 30 clearly states: "shareholders to directors, supervisors or senior management on behalf of the defendant instituted proceedings shareholders, directors, supervisors or senior managers respondent to provide evidence that the plaintiff during the possible malicious litigation cases, litigation costs and provide security for the plaintiff, the court should be permitted, the security costs should be equal to the defendant in the proceedings and reasonable legal fees that may occur. "Clearly, the interpretation of proceedings in the established security for costs, but also the application of the system to set a more stringent restrictions.
(Iv) the right to limit the plaintiff shareholder litigation
The plaintiff sued the shareholders the right to appeal an act, the substantive rights of the company does not have powers, the right to remain with the ultimate entity belonging to the company, and the shareholder lawsuit involving the rights of other shareholders indirectly, so the plaintiff shareholder litigation rights should be necessary to restrict. This restriction mainly to restrictions on disposition of the plaintiff shareholders. China's "Law explained (2) (Draft)" the provisions of section 30 restrictions on disposition of the plaintiff shareholders had taken the position of Justice with Mercy. On the one hand, the right of the plaintiff shareholders, were strictly limited to reconciliation, settlement agreement required to be "by the company's shareholders or the shareholders of the General Assembly resolution" can be recognized; the other hand, "by the company's shareholders or the shareholders of the General Assembly resolution" in settlement agreement is not set any restrictions, and expressly provides that "the plaintiff applies for the withdrawal or the parties request the court to issue 原文请找腾讯752018766优,文|论~文/网
http://www.youerw.com with the principle of discretion, and the right to leave it to the company's shareholders or the shareholders exercise. In fact, shareholders or the shareholders meeting will be the majority shareholder control, and major shareholders in order to avoid being investigated for control of shareholders and directors, supervisors and legal responsibility, on behalf of the shareholders may be reached by direct action of the plaintiff shareholders, the shareholders by the company to give financial compensation for the plaintiff settlement agreement, which undermine the interests of the company, and with the establishment of the original intention of the Shareholder Litigation contrary. Therefore, the court should remain in the plaintiff shareholder lawsuit settlement and the withdrawal of shareholders such as the need to review the exercise of right of disposition. 上一页 [1] [2] [3] [4] [5] 下一页
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