股东派生诉讼制度之探究

发布时间：2019-02-25 19:10

【摘要】： 股东派生诉讼,指当公司的合法权益受到不法行为侵害而公司怠于起诉时,公司股东以自己之名义提起诉讼,所获赔偿皆归于公司的一种诉讼形态。随着经济的快速发展,我国公司治理结构中存在的问题和不足日益凸显,董事、监事、经理等高管人员侵害公司利益,进而损害中小股东权益的现象日益增多,中小股东的合法权益急需法律予以特别保护。我国尽管在2005年修订、通过的《公司法》中首次对股东派生诉讼予以规定,为中小股东维护公司合法权益进而维护自身利益,进行派生诉讼提供了法律上的依据。然而,该法律规定还不完善,还存在诸多的问题和不足。本文从程序法的角度入手,对股东派生诉讼制度所涉及的问题进行较为系统、深入的研究,以期对我国建立和完善股东派生诉讼制度有所启迪和帮助。本文共分四章,具体包括以下内容：第一章：股东派生诉讼制度概述。主要介绍了股东派生诉讼制度的基础性问题,包括概念和特点；起源和历史发展；股东派生诉讼与股东直接诉讼的关系；股东派生诉讼与代表人诉讼关系以及股东派生诉讼的功能等。第二章：股东派生诉讼制度的理论基础。基础理论的研究是构建各项诉讼制度的前提。本文认为,股东派生诉讼制度的理论基础是股东权理论和当事人扩张理论。第三章：股东派生诉讼在中国的现状与评析。本章包括两部分内容：一是股东派生诉讼在我国的现状；二是对我国股东派生诉讼相关规定进行分析,归纳出我国股东派生诉讼法律规定的漏洞与不足,以期股东派生诉讼程序设计更具有针对性。第四章：股东派生诉讼相关程序设计。股东派生诉讼相关程序设计包括：诉讼当事人即原告、被告以及公司在诉讼中的地位；诉讼管辖；诉讼请求的合并与反诉；举证责任；既判力以及再审等问题。
[Abstract]:Shareholder derivative action means that when the legitimate rights and interests of the company are infringed by illegal acts and the company fails to sue, the shareholders of the company bring a lawsuit in their own name, and the compensation is attributed to a kind of litigation form of the company. With the rapid development of economy, the problems and deficiencies in the corporate governance structure of our country are becoming more and more prominent. The phenomenon that the directors, supervisors, managers and other senior managers infringe on the interests of the company and then damage the rights and interests of the minority shareholders is increasing day by day. The legal rights and interests of minority shareholders are in urgent need of special protection by law. Although it was revised in 2005, the shareholder derivative litigation was first stipulated in the Company Law, which provided a legal basis for the minority shareholders to safeguard the legitimate rights and interests of the company and then to safeguard their own interests. However, the law is not perfect, there are still many problems and deficiencies. From the point of view of procedural law, this paper makes a systematic and in-depth study on the problems involved in shareholder derivative litigation system, with a view to enlightening and helping to establish and perfect shareholder derivative litigation system in China. This paper is divided into four chapters, including the following: chapter 1: shareholder derivative litigation system overview. This paper mainly introduces the basic problems of shareholder derivative litigation system, including the concept and characteristics, the origin and historical development, the relationship between shareholder derivative litigation and shareholder direct litigation, and the relationship between shareholder derivative litigation and shareholder direct litigation. The relationship between shareholder derivative action and representative litigation and the function of shareholder derivative action. Chapter two: the theoretical basis of shareholder derivative litigation system. The research of basic theory is the premise of constructing each litigation system. This paper argues that the theoretical basis of shareholder derivative litigation system is the theory of shareholder right and the theory of parties' expansion. Chapter three: the current situation and analysis of shareholder derivative litigation in China. This chapter includes two parts: one is the current situation of shareholder derivative litigation in China; The second is to analyze the relevant provisions of shareholder derivative litigation in our country, sum up the loopholes and shortcomings of the legal provisions of shareholder derivative litigation in our country, and hope that the design of shareholder derivative litigation procedure will be more targeted. Chapter four: the procedure design of shareholder derivative litigation. The relevant procedural design of shareholder derivative litigation includes: the litigant plaintiff defendant and the position of the company in the litigation; litigation jurisdiction; merger and counterclaim of litigation claim; burden of proof; res judicata and retrial and so on.
【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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