股东代表诉讼原告资格探讨

发布时间：2018-03-31 20:10

本文选题：股东代表诉讼　切入点：原告资格　出处：《中国政法大学》2010年硕士论文

【摘要】：股东代表诉讼是公司法的一项重要制度,是正当原告原则和多数决规则的例外适用。如何寻求维护公司效率与保护公司、中小股东利益之间的平衡,始终是立法对股东代表诉讼进行制度设计时考虑的重要问题,而其中对股东代表诉讼原告资格的界定,是平衡股东代表诉讼本身滥诉和怠诉问题的重要手段。从理论角度分析,界定股东代表诉讼原告资格需要坚持维护公司人格独立、正视资本多数决、公司利益优先和尊重公司自治等原则,尤其是要正视大股东侵害小股东是源于大股东对其监督成本的补偿需求和公司资本多数决规则的运用执行。参考国外立法例,从持股比例、持股时间和前置程序三个方面可见我国立法规定尚有待完善之处:1、持股比例规定缺乏弹性,可将原告持股比例的设计与大股东持股比例相结合;2、持股时间规定只有推定原告善意的情形,没有将可以排除原告恶意的情形规定为例外,应将自公司成立之日起持有股份和因法定取得持有股份的情形规定为例外;3、前置程序规定与美国“全部请求必需”的精神相同,但却未对董事会、监事会的诉讼决定进行审查,导致对公司内部机构合理的诉讼决定也被忽视,情况紧急下诉前豁免请求的同时也豁免了向董事会、监事会的诉后请求,在董事会、监事会不适宜的情况下公司没有其他机构做出诉讼决定,对清算情况下前置程序的规定也不明确。从实践角度分析,有限责任公司股东和股份有限公司股东受到原告资格的限制程度不同,而法院在实践中违背立法的意愿忽视了原告资格的程序要件要求,我国股东代表诉讼已经出现怠诉倾向和偏离立法原意的操作。笔者建议可以先对原告资格问题中前置程序进行立法完善,再对持股比例、持股时间进行完善,然后再从举证成本、诉讼费用入手进行相关制度完善,循序渐进,以求更好发挥股东代表诉讼的作用。
[Abstract]:Shareholder representative action is an important system of company law. It is the exception of the principle of just plaintiff and the rule of majority decision.How to seek to maintain the balance between the efficiency of the company and the protection of the interests of the minority shareholders has always been an important issue to be considered in the legislative design of the shareholder's representative litigation system, and the definition of the qualification of the plaintiff in the shareholder's representative action.It is an important means to balance the problem of shareholder's representative litigation.From the theoretical point of view, defining the plaintiff's qualification of shareholder representative litigation needs to uphold the principles of safeguarding the personality of the company, facing the majority of capital decisions, giving priority to the interests of the company and respecting the autonomy of the company.In particular, it is necessary to face up to the fact that the compensation demand of large shareholders for their supervision costs and the application of the majority rules of corporate capital are derived from the large shareholders' encroachment on minority shareholders.Referring to foreign legislative examples, we can see that the legislative provisions of our country still need to be improved from three aspects: shareholding ratio, shareholding time and pre-procedure, and the shareholding ratio is inflexible.It is possible to combine the design of the plaintiff's shareholding ratio with the shareholding ratio of the majority shareholder. The time for holding shares is only supposed to be a case of good faith of the plaintiff, and no exception is made to the situation where the plaintiff's malice can be ruled out.Exceptions should be made to the case of holding shares and acquiring shares by law from the date of incorporation of the company. The provisions of the pre-procedure shall be the same as the spirit of "all requests necessary" in the United States, but the decisions of the board of directors and the board of supervisors shall not be examined.As a result, reasonable litigation decisions on the internal organs of the company were also ignored. In case of emergency, requests for exemption before litigation were also waived to the Board of Directors and the Board of Supervisors for post-appeal requests, in the Board of Directors,When the board of supervisors is inappropriate, the company has no other body to make the lawsuit decision, and the rules of the pre-procedure in the liquidation case are not clear.From the point of view of practice, shareholders of limited liability company and shareholders of joint stock limited company are restricted by the qualification of plaintiff, but the court ignores the procedural requirements of qualification of plaintiff against the will of legislation in practice.Shareholder representative litigation in China has appeared the tendency of litigation and deviating from the legislative intent.The author suggests that we can legislate the leading procedure in the question of plaintiff's qualification first, then perfect the proportion of stock holding and the time of holding stock, then proceed from the cost of proof and the cost of litigation to perfect the relevant system, step by step, and step by step.In order to better play the role of shareholder representative litigation.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

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