股东派生诉讼法律制度研究
发布时间：2018-11-26 18:49
【摘要】： 股东是公司成立的根本,股东权利应当得到充分的保护。随着公司制度的发展,公司内部权力的调整给公司制约机制和监督机制都带来很大的挑战。我国传统《公司法》在制定过程中,侧重于对股东实体性权利的保护,却忽视了程序性权利的规定。在诉讼法方面也没有为股东提起诉讼留有必要的空间(经常是以暂不受理告终),使得股东的权益长期处于无保障的状态,尤其是小股东的权利,这也对公司治理结构的完善带来了不小影响。股东派生诉讼制度作为小股东权利保障的制度为各国立法普遍确立。该制度是股东通过诉讼手段对自己权利进行救济的有效途径,也是加强股东对公司事务监督的有效方法。新《公司法》肯定了股东派生制度,是一个可喜的进步,对于法律制度的完善、公司治理结构的健全都有非常重大的意义。但是我们应当清楚地看到这只是一项制度确立的开始,《公司法》中所规定的股东派生诉讼制度仍然还存在许多不足之处,还需要不断地进行研究和完善。 本文共分为四个部分。第一部分主要明确了股东派生诉讼的含义,并从历史渊源角度对股东派生诉讼制度发展历程进行了介绍。运用比较分析的方法,通过与股东直接诉讼的比较加深了对股东派生诉讼的理解。第二部分是对股东派生诉讼产生的现实基础和股东享有派生诉权的法理进行分析。这部分着重说明了公司制度发展过程中出现的小股东保护问题和对公司经营者监督失灵问题是股东派生诉讼产生的现实基础。同时,从实体法和程序法两个方面对公司股东所享有派生诉权进行了分析,阐明其是在股东权遭到侵害时股东所享有的一种救济性权利。第三部分是对各国及地区股东派生诉讼的相关规定进行介绍。对不同国家及地区立法例进行比较分析,总结立法经验,提出我国股东派生诉讼制度中存在的不足之处。第四部分是对我国完善股东派生制度的一些建议,主要分为两个方面。一方面,通过法学理论与司法实践的结合,提出完善现行《公司法》中股东派生诉讼制度的建议,主要涉及到派生诉讼当事人、前置程序、费用担保制度和相关的权责规定。另一方面,是对《公司法》中股东派生诉讼制度与其他法律制度进行协调的建议,主要讨论了与我国《民事诉讼法》协调适用的问题。本文对股东派生诉讼制度的探讨仍有不足之处,还需要专家、学者进一步批评指正。
[Abstract]:Shareholders are the foundation of the establishment of the company, the rights of shareholders should be fully protected. With the development of company system, the adjustment of internal power brings great challenge to the company's restriction mechanism and supervision mechanism. In the process of formulating the traditional Company Law of China, it emphasizes on the protection of the substantive rights of shareholders, but ignores the provisions of procedural rights. In the procedural law, there is no necessary space for shareholders to file a lawsuit (often ending in a temporary stay), leaving shareholders' rights and interests in a state of long-term insecurity, especially the rights of minority shareholders. This also brought not small influence to the perfection of the corporate governance structure. The system of shareholder derivative action, as the protection of minority shareholders' rights, is generally established in various countries. This system is not only an effective way for shareholders to remedy their rights through litigation, but also an effective way to strengthen shareholders' supervision over company affairs. The new Company Law affirms the shareholder derivative system, which is a gratifying progress. It is of great significance to the perfection of the legal system and the perfection of the corporate governance structure. However, we should clearly see that this is only the beginning of the establishment of a system, and the shareholder derivative litigation system stipulated in Company Law still has many shortcomings and needs to be continuously studied and perfected. This paper is divided into four parts. The first part mainly defines the meaning of shareholder derivative litigation, and introduces the history of shareholder derivative action system from the perspective of historical origin. By using the method of comparative analysis, it deepens the understanding of shareholder derivative action by comparing it with shareholders' direct action. The second part is to analyze the realistic foundation of shareholder derivative action and the legal principle of shareholder's right of derivative action. This part focuses on the protection of minority shareholders in the development of the corporate system and the failure of supervision over the company's managers, which is the realistic basis for the generation of shareholder derivative actions. At the same time, from the substantive law and the procedural law, this paper analyzes the right of derivative action enjoyed by the shareholders of the company, and clarifies that it is a relief right enjoyed by the shareholders when the shareholders' rights are infringed. The third part is the introduction of the relevant provisions of shareholder derivative litigation in various countries and regions. This paper makes a comparative analysis of the legislative cases in different countries and regions, summarizes the legislative experience, and points out the shortcomings of the shareholder derivative litigation system in China. The fourth part is to our country consummates the shareholder derivative system some suggestions, mainly divides into two aspects. On the one hand, through the combination of legal theory and judicial practice, this paper puts forward some suggestions to perfect the shareholder derivative litigation system in the current Company Law, which mainly involves the derivative litigant, the pre-procedure, the cost guarantee system and the relevant provisions of rights and responsibilities. On the other hand, it is a suggestion to coordinate the shareholder derivative litigation system with other legal systems in Company Law, and mainly discusses the problem of coordination and application with our country's Civil procedure Law. In this paper, there are still shortcomings in the discussion of shareholder derivative litigation system, and experts and scholars are needed to further criticize and correct it.
【学位授予单位】：四川省社会科学院
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.291.91
本文编号：2359331
[Abstract]:Shareholders are the foundation of the establishment of the company, the rights of shareholders should be fully protected. With the development of company system, the adjustment of internal power brings great challenge to the company's restriction mechanism and supervision mechanism. In the process of formulating the traditional Company Law of China, it emphasizes on the protection of the substantive rights of shareholders, but ignores the provisions of procedural rights. In the procedural law, there is no necessary space for shareholders to file a lawsuit (often ending in a temporary stay), leaving shareholders' rights and interests in a state of long-term insecurity, especially the rights of minority shareholders. This also brought not small influence to the perfection of the corporate governance structure. The system of shareholder derivative action, as the protection of minority shareholders' rights, is generally established in various countries. This system is not only an effective way for shareholders to remedy their rights through litigation, but also an effective way to strengthen shareholders' supervision over company affairs. The new Company Law affirms the shareholder derivative system, which is a gratifying progress. It is of great significance to the perfection of the legal system and the perfection of the corporate governance structure. However, we should clearly see that this is only the beginning of the establishment of a system, and the shareholder derivative litigation system stipulated in Company Law still has many shortcomings and needs to be continuously studied and perfected. This paper is divided into four parts. The first part mainly defines the meaning of shareholder derivative litigation, and introduces the history of shareholder derivative action system from the perspective of historical origin. By using the method of comparative analysis, it deepens the understanding of shareholder derivative action by comparing it with shareholders' direct action. The second part is to analyze the realistic foundation of shareholder derivative action and the legal principle of shareholder's right of derivative action. This part focuses on the protection of minority shareholders in the development of the corporate system and the failure of supervision over the company's managers, which is the realistic basis for the generation of shareholder derivative actions. At the same time, from the substantive law and the procedural law, this paper analyzes the right of derivative action enjoyed by the shareholders of the company, and clarifies that it is a relief right enjoyed by the shareholders when the shareholders' rights are infringed. The third part is the introduction of the relevant provisions of shareholder derivative litigation in various countries and regions. This paper makes a comparative analysis of the legislative cases in different countries and regions, summarizes the legislative experience, and points out the shortcomings of the shareholder derivative litigation system in China. The fourth part is to our country consummates the shareholder derivative system some suggestions, mainly divides into two aspects. On the one hand, through the combination of legal theory and judicial practice, this paper puts forward some suggestions to perfect the shareholder derivative litigation system in the current Company Law, which mainly involves the derivative litigant, the pre-procedure, the cost guarantee system and the relevant provisions of rights and responsibilities. On the other hand, it is a suggestion to coordinate the shareholder derivative litigation system with other legal systems in Company Law, and mainly discusses the problem of coordination and application with our country's Civil procedure Law. In this paper, there are still shortcomings in the discussion of shareholder derivative litigation system, and experts and scholars are needed to further criticize and correct it.
【学位授予单位】：四川省社会科学院
【学位级别】：硕士
【学位授予年份】：2007
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前5条
1 金善红;论股东代表讼诉制度[D];大连海事大学;2010年
2 徐丽静;创业板退市中投资者保护制度研究[D];复旦大学;2011年
3 刘义;论股东诉权与公司自治的制衡[D];兰州大学;2009年
4 苗全军;股东代表诉讼制度研究[D];吉林大学;2009年
5 马继亮;股东派生诉讼制度初探[D];上海交通大学;2008年
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