派生诉讼原告资格论

On the Qualified Plaintiff of the Derivative Action

派生诉讼制度对维护股东的公司治理主体地位、完善公司治理结构具有重要作用。该制度的运作机理突破了公司作为社团的自治性,确定鼓励积极诉讼和遏制投机诉讼的平衡点是该制度的关键,其间的技术保障体现为派生诉讼原告资格的确定。本文认为只有符合“当时所有规则”且能公正代表其他股东和公司利益的股东才能成为此类诉讼的适格原告。

The derivative action is very important to protect the shareholders’ management position in the corporation. It is also very useful to perfect the structure of the corporations’ governance. However, the operation mechanism of this system makes a breakthrough at the autonomy of the corporation. The key of this system is to choose the equation of encouraging the positive suit and restricting the strike suit. The technique is to stipulate the plaintiff qualification. In this thesis, we think only the shareholder who accord the contemporary ownership and fairly represent the interests of the corporation and other shareholders can be the qualified plaintiff of the derivative action.