股东派生诉讼前置程序探析
发布时间：2018-09-07 09:17
【摘要】： 股东派生诉讼在国外产生已有百余年的历史,在中小股东维权方面已然成为常规的公司法律制度,从广义的角度看它也是公司治理的必要组成部分。其中,前置程序是股东派生诉讼的必然要求,它要求股东提起派生诉讼之前须先向公司提出请求,除非有法定事由的存在应等待法定时间的经过,由公司决定是否追究公司利益加害者的责任。就我国公司法律制度而言,股东派生诉讼的引进十分晚近。直至2005年10月27日修订的新公司法才首次引入该制度,该法对前置程序的规定主要体现在第152条。然而该条规定过于笼统,由于我国公司实践不够成熟,理论准备尚不充分,为了适应现代公司法的发展趋势,弥补法律规定的漏洞,有必要在借鉴外国立法的基础上,进行深入的研究分析,为我国公司法及诉讼法的完善作好学理准备。派生诉讼制度有待深入研究的理论问题尚多,出于篇幅和学识所限,本文仅就派生诉讼前置程序作简要论析,希望对派生诉讼在我国的运用有所裨益。 基于此,本文主要参照派生诉讼较为成熟美国相关规则,结合我国公司立法,对前置程序的有关内容加以探讨。本文由序言和正文两部分构成,其中正文部分的结构如下: 第一部分对股东派生诉讼制度作一个整体上的介绍,从股东派生诉讼发展过程中概括出它的提起条件和理论基础。在此基础上,引出前置程序,并指出股东派生诉讼的特性决定了股东提起派生诉讼之前必须履行前置程序。 第二部分主要对前置程序进行了理论上的探讨,分别是对前置程序的界定和设置原则的总结。着重分析了竭尽公司内部救济原则及申请无益在前置程序中的体现。然后针对大陆法系和我国适用前置程序的情况分别作了介绍。 第三部分开始进入到程序性解析。这一部分对前置程序的重要步骤——股东申请作了详细分析。主要问题涉及申请的形式、申请机关、申请机关所作决定的效力等。其间各部分结合我国的情况分别进行了分析。 第四部分针对前置程序中公司机关的审查过程进行探讨。该部分在分析了美国商业判断规则和诉讼委员会在前置程序中适用的情况后,探讨了我国借鉴该规则的可能性。 第五部分是结语,对我国现行公司立法的具体情况作了总结,并结合本文研究对完善我国派生诉讼前置程序提出了若干建议。
[Abstract]:Shareholder derivative litigation has been produced in foreign countries for more than 100 years. It has become a normal legal system for minority shareholders to protect their rights. It is also a necessary part of corporate governance from a broad perspective. Among them, the pre-procedure is the inevitable requirement of shareholder derivative action. It requires shareholders to make a request to the company before bringing derivative action, unless there is a legal reason to exist and wait for the legal time to pass through. It is up to the company to decide whether to hold the interests of the company accountable. As far as the corporate legal system is concerned, the introduction of shareholder derivative action is very late. It was not until October 27, 2005, when the new Company Law was amended, that this system was introduced for the first time. However, the provisions of this article are too general, because the company practice in our country is not mature enough and the theory preparation is not enough, in order to adapt to the development trend of the modern company law and to make up the loopholes of the legal provisions, it is necessary to draw lessons from the foreign legislation. Carry on the thorough research and analysis, for our country company law and the law of procedure perfect the theory preparation. There are still many theoretical problems to be deeply studied in derivative litigation system. Due to the limitation of space and knowledge, this paper makes a brief analysis on the preposition procedure of derivative litigation, hoping to be of benefit to the application of derivative litigation in our country. Based on this, this paper mainly refers to the relevant rules of derivative litigation in the United States, combined with our company legislation, to discuss the content of the pre-procedure. This paper is composed of two parts, the preface and the text. The structure of the text is as follows: the first part introduces the system of shareholder derivative action as a whole. From the development process of shareholder derivative action, it summarizes its conditions and theoretical basis. On this basis, the pre-procedure is introduced, and it is pointed out that the characteristic of the shareholder derivative action determines that the shareholder must perform the pre-procedure before filing the derivative action. The second part mainly discusses the preprogram in theory, which is the conclusion of the definition and setting principle of the preprocedure. The principle of internal remedy and the embodiment of unhelpful application in the pre-procedure are analyzed emphatically. Then the civil law system and China's application of the pre-procedure were introduced. The third part begins to go into the procedural analysis. This part makes a detailed analysis on the important step of the pre-procedure-shareholder application. The main issues are the form of the application, the validity of the decision made by the applicant authority, etc. In the meantime each part unifies our country's situation to carry on the analysis separately. The fourth part discusses the review process of the company organ in the pre-procedure. After analyzing the American commercial judgment rule and the application of the litigation committee in the pre-procedure, this part probes into the possibility of using the rule for reference in our country. The fifth part is the conclusion, summarizes the specific situation of the current company legislation in our country, and puts forward some suggestions to perfect the leading procedure of derivative litigation in our country in combination with the research in this paper.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.291.91
[Abstract]:Shareholder derivative litigation has been produced in foreign countries for more than 100 years. It has become a normal legal system for minority shareholders to protect their rights. It is also a necessary part of corporate governance from a broad perspective. Among them, the pre-procedure is the inevitable requirement of shareholder derivative action. It requires shareholders to make a request to the company before bringing derivative action, unless there is a legal reason to exist and wait for the legal time to pass through. It is up to the company to decide whether to hold the interests of the company accountable. As far as the corporate legal system is concerned, the introduction of shareholder derivative action is very late. It was not until October 27, 2005, when the new Company Law was amended, that this system was introduced for the first time. However, the provisions of this article are too general, because the company practice in our country is not mature enough and the theory preparation is not enough, in order to adapt to the development trend of the modern company law and to make up the loopholes of the legal provisions, it is necessary to draw lessons from the foreign legislation. Carry on the thorough research and analysis, for our country company law and the law of procedure perfect the theory preparation. There are still many theoretical problems to be deeply studied in derivative litigation system. Due to the limitation of space and knowledge, this paper makes a brief analysis on the preposition procedure of derivative litigation, hoping to be of benefit to the application of derivative litigation in our country. Based on this, this paper mainly refers to the relevant rules of derivative litigation in the United States, combined with our company legislation, to discuss the content of the pre-procedure. This paper is composed of two parts, the preface and the text. The structure of the text is as follows: the first part introduces the system of shareholder derivative action as a whole. From the development process of shareholder derivative action, it summarizes its conditions and theoretical basis. On this basis, the pre-procedure is introduced, and it is pointed out that the characteristic of the shareholder derivative action determines that the shareholder must perform the pre-procedure before filing the derivative action. The second part mainly discusses the preprogram in theory, which is the conclusion of the definition and setting principle of the preprocedure. The principle of internal remedy and the embodiment of unhelpful application in the pre-procedure are analyzed emphatically. Then the civil law system and China's application of the pre-procedure were introduced. The third part begins to go into the procedural analysis. This part makes a detailed analysis on the important step of the pre-procedure-shareholder application. The main issues are the form of the application, the validity of the decision made by the applicant authority, etc. In the meantime each part unifies our country's situation to carry on the analysis separately. The fourth part discusses the review process of the company organ in the pre-procedure. After analyzing the American commercial judgment rule and the application of the litigation committee in the pre-procedure, this part probes into the possibility of using the rule for reference in our country. The fifth part is the conclusion, summarizes the specific situation of the current company legislation in our country, and puts forward some suggestions to perfect the leading procedure of derivative litigation in our country in combination with the research in this paper.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.291.91
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