股东代表诉讼中的被告范围

发布时间：2018-09-01 09:09

【摘要】：股东代表诉讼起源于英国福斯规则——禁止少数派股东对公司提起诉讼,当公司存在欺诈、控制的时候不适用,体现对公司自治和公司独立人格的尊重;美国商业判断原则驳回诉讼体现对董事经营判断的尊重,股东代表诉讼都不是英美国家保护少数派股东的主要手段。股东代表诉讼是公司利益受损且意思受压迫时对公司独立人格的妥协和抗争,与公司直接诉讼相比是非常态机制,该制度以威慑功能为主,以赔偿和促进董事遵守义务功能为辅。股东代表诉讼的被告范围作为股东代表诉讼制度的入口,确定被告范围需要依据制度的功能和定位,被告范围大小与股东代表诉讼功能和目的相互统一才能确保制度运行之和谐。股东代表诉讼被告范围的大小反映对公司独立人格的挑战程度,与公司特征息息相关,扩大股东代表被告范围实际上增加股东的权利范围。我国公司法采取宽松立法例,未限制股东代表诉讼的被告范围,所以实践中不乏将控股股东、雇员、公司外第三人作为被告的案件;《公司法司法解释二》列清算组成员为股东代表诉讼被告,因为公司受到清算组成员控制,但未说明清算组成员的法律地位与董事相仿。确定我国股东代表诉讼中的被告范围应参考股东代表诉讼的制度目的,充分尊重公司自治;行为人与董事在公司有无相似的权利、义务;有没有其他可替代救济手段;尽可能减少对公司原有权利配置格局的影响。控股股东仅有对公司间接控制权,关于公司重大事项的表决少数派股东仍有否决的可能;我国未确立控股股东对公司、小股东的诚信义务;有其他可替代手段更直接保护少数派股东的利益和规制控股股东的行为;如列控股股东作为被告,将强化少数派股东监督控股股东的动机,降低控股股东对公司投资的信心,放任董事、监事不履行忠实、勤勉义务,改变公司原有权利格局,有较大弊端。基于此,控股股东不应成为股东代表诉讼的被告。举重明轻,公司雇员、公司外第三人在公司的地位、对公司的义务更决定他们不能成为股东代表诉讼的被告。
[Abstract]:The shareholder representative lawsuit originated from the Foss rule of England, which forbade minority shareholders to bring suit against the company. When there was fraud and control in the company, it could not be applied, which reflected the respect for corporate autonomy and independent personality. The rejection of American commercial judgment principle reflects respect for directors' business judgment, and shareholder representative litigation is not the main means of protecting minority shareholders in Anglo-American countries. Shareholder representative litigation is the compromise and struggle against the independent personality of the company when its interests are damaged and its intention is oppressed, which is an abnormal mechanism compared with direct litigation of the company. The function of compensation and promotion of directors' compliance with their obligations shall be subsidiary. The scope of the defendant in the shareholder's representative action is the entrance of the shareholder's representative litigation system, and the determination of the defendant's scope needs to be based on the function and orientation of the system. Only when the scope of defendant is unified with the function and purpose of shareholder representative litigation can the system run harmoniously. The scope of the defendant in shareholder's representative litigation reflects the degree of challenge to the independent personality of the company and is closely related to the characteristics of the company. Expanding the scope of shareholder's representative defendant actually increases the scope of shareholders' rights. The Company Law of our country adopts lenient legislation, which does not limit the scope of the defendant in the shareholder's representative action, so in practice there are many controlling shareholders and employees. The case of the third party outside the company as the defendant; the explanation of Company Law II states that the liquidation group members are defendants in the shareholder representative action because the company is controlled by the liquidation group members, but it is not stated that the legal status of the liquidation group members is similar to that of the directors. To determine the scope of the defendant in the shareholder representative action in our country, we should refer to the institutional purpose of the shareholder representative action, fully respect the autonomy of the company, whether the actor and the director have similar rights and obligations in the company, whether there are other alternative remedies; Minimize the impact on the company's original allocation of rights. The controlling shareholder has only indirect control over the company, and the minority shareholders still have the possibility of veto on the important matters of the company, China has not established the fiduciary obligation of the controlling shareholder to the company and the minority shareholder; There are other alternative means to more directly protect the interests of minority shareholders and regulate the behavior of controlling shareholders; for example, listing controlling shareholders as defendants will strengthen the motivation of minority shareholders to supervise controlling shareholders and reduce the controlling shareholders' confidence in the investment of the company. Letting directors and supervisors fail to fulfill their duty of loyalty and diligence, and changing the original right pattern of the company have great drawbacks. Based on this, controlling shareholder should not be the defendant of shareholder's representative action. Weight-lifting, company employees, the status of third parties outside the company, and their obligations to the company determine that they cannot be defendants in shareholder representation litigation.
【学位授予单位】：深圳大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91

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