派生诉讼制度简论.pdf

Abstract The system of derivative action created first by the Equity in Britain is an important way to protect the interests of the minority stock holders, the creditors in the company. It is indispensable to the company governance. The system of derivative action has a history of more than one hundred years abroad, but in china, there has been no such legislation yet. The article adopts the route of research from macroscopic to microcosmic and the way of comparative law to study the history evolution, characteristics and some practice of the derivative action, and the jurisprudence of its litigious right on the basis of the forefathers study. The article thinks: the derivative action as the judicial power getting involved in governing of company has become a part of the outside company governance. With the development of the company governance, we should expand the range of the plaintiff to other subjects besides the shareholder, at least it should include the creditors. Company is a special participant in the derivative action. We should design one valid encouragement and restriction mechanism to balance the interests of every subject while establishing the system. The article has studied some relevant theories of the derivative action, and put forward some propositions of the future system of derivative action in China, for the sake of offering some beneficial reference to the legislation. Keyword: Derivative action; Company governance; Party; Encourage and restrict 引 言 公司作为现代市场经济的主导力量，在社会经济生活中发挥着