股东代表诉讼费用补偿问题研究

发布时间：2018-06-07 03:44

本文选题：股东代表诉讼 + 费用补偿　；参考：《辽宁大学》2017年硕士论文

【摘要】：2005年我国正式将股东代表诉讼制度写进《公司法》。立法上的不断完善、公司治理制度的日渐成熟在一定程度上使得该制度保护了公司和股东的利益。但由于立法过于原则化甚至缺失、股东代表诉讼费用收取未有特殊规定等原因,为股东量身定做的保护措施变得形同虚设。股东代表诉讼费用补偿实际上是转移因诉讼发生的费用。即只有将代表诉讼的诉讼成本转移到公司身上,诉讼才有被提起的可能。股东代表诉讼设计的目的之一是防止滥诉,在股东代表诉讼的实践中公司少有对股东进行费用补偿或许出于抑制股东趁机谋取私利的考虑,但通过法院司法许可制度鼓励正当诉讼,剔除无益诉讼,公司对股东给予费用补偿才具有正当性。本文共分为四个部分。第一部分是股东代表诉讼费用补偿的概述。通过介绍股东代表诉讼费用补偿的概念和公司对股东费用补偿的法理基础,为公司对股东进行费用补偿尤其是为公司对败诉股东承担费用补偿的义务提供理论依据。第二部分是国外股东代表诉讼费用补偿制度的立法评析。国外的股东代表诉讼费用补偿制度,特别是在费用补偿的范围和法院许可制度的设置上值得我们借鉴。第三部分是我国股东代表诉讼费用补偿制度存在的问题。我国立法对费用补偿的标准、范围等问题未作相关规定,实践中我国法院对此类案件的收费标准多以财产类案件为依据,加之股东代表诉讼前置程序过于原则,法院在此类案件上司法控制不足,使得股东获得费用补偿缺乏正当性且补偿可能性较小,股东诉讼的成本与收入严重不平衡。第四部分是针对我国股东代表诉讼费用补偿存在的问题提出的建议。针对股东代表诉讼费用补偿制度存在的问题,建议建立特殊的案件受理费制度,减轻提诉股东的诉讼成本;对我国股东代表诉讼案件加强司法控制;对于《公司法》和司法解释中涉及的关于费用补偿的规定,本文提出细化股东代表诉讼费用补偿的措施,为完善法律规定提出可操作性的建议。
[Abstract]:In 2005, our country formally wrote the shareholder representative litigation system into the Company Law. With the continuous improvement of legislation and the maturation of corporate governance system, the system protects the interests of the company and shareholders to a certain extent. However, due to the fact that the legislation is too principled or even lacking, and there are no special provisions for the collection of litigation fees for shareholders, the protection measures tailored for shareholders become virtually empty. The compensation of shareholder's representative litigation expenses is in fact the transfer of costs incurred as a result of litigation. That is, only the cost of litigation on behalf of the transfer to the company, litigation is possible to be brought. One of the purposes of shareholder representative litigation design is to prevent excessive litigation. In the practice of shareholder representative litigation, the company rarely compensates shareholders for expenses, which may be due to the consideration of restraining shareholders from taking advantage of the opportunity to pursue their own interests. But through the judicial permission system of the court to encourage the proper litigation and eliminate the unhelpful litigation, it is legitimate for the company to compensate the shareholders for the expenses. This paper is divided into four parts. The first part is the summary of the compensation of shareholder representative litigation costs. By introducing the concept of shareholder's representative litigation cost compensation and the legal basis of company's compensation to shareholders' expenses, this paper provides a theoretical basis for the company to compensate shareholders' expenses, especially for the company's obligation to bear the cost compensation to the losing shareholders. The second part is the legislative evaluation of the compensation system of shareholder's representative litigation costs abroad. The compensation system of shareholder representative litigation costs abroad, especially in the scope of cost compensation and the establishment of court license system, is worthy of our reference. The third part is the problems existing in the compensation system of shareholder representative litigation costs in our country. There is no relevant regulation on the standard and scope of cost compensation in our country's legislation. In practice, the standard of charging for this kind of cases is based on property cases, and the pre-procedure of shareholder representative litigation is too principle. The lack of judicial control in such cases makes shareholders' compensation for expenses lack of legitimacy and the possibility of compensation is relatively small. The cost and income of shareholder litigation are seriously unbalanced. The fourth part is aimed at the problems existing in the compensation of shareholder representative litigation costs in China. In view of the problems existing in the compensation system of shareholder's representative litigation expenses, it is suggested to establish a special system of accepting fees in order to reduce the litigation costs of the shareholders, to strengthen judicial control over the shareholder's representative litigation cases in our country. With regard to the provisions on compensation of costs involved in Company Law and judicial interpretation, this paper puts forward some measures to refine the compensation of litigation expenses for shareholders' representatives, and puts forward some operable suggestions for perfecting the legal provisions.
【学位授予单位】：辽宁大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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