试论派生诉讼制度及新修订《公司法》对其规制和完善

Analysis on Derivative Action and Construction and Perfection of the Rules in China's Newly Amended Company Law

派生诉讼最初是来源于英美衡平法上的救济措施,后被大陆法系各国引起。派生诉讼是现代公司法提供给小股东用以纠正所有者缺位导致董事职权过大以及资本多数决原则下的大股东独权的救济手段。但若对派生诉讼不加约束,也会损害董事进行商业判断的自主性。因此,西方各国在规定一定派生诉讼的激励机制同时,也设置了一定的约束机制。我国新修订《公司法》第150条、第152条也对派生诉讼加以规定,但尚有若干不明确之处。

The derivative action was fint developed as an equity remedy in common law system, but civil law countries have also adopted it. It is a remedy under modem corporate law to redress the problem of absence of the proprietor or the abuse of the majority rule. However, if the rule is not restricted, it will impair directors＇autonomy in making business judgment. Therefore, the derivative action in western countries has been restricted as well as encouraged. China＇ s newly amended Company Law has also made the room for derivative action in Article 150 and 152, but they still need further clarification.