实施《公司法》中股东代表诉讼研究

On the Implementation of Shareholder's Representative Action in Company Law

股东代表诉讼兼有代位诉讼和代表诉讼的双重性质,股权中的共益权是股东诉权的基础。实践操作面临的诉讼主体、举证责任、诉讼费用的计算、诉讼结果的归属等问题有赖于程序法的界定,其间必须突破现有的传统理论,民事诉讼法不妨以此为契机做出调整,以推进整个经济法制的发展和繁荣。

Shareholder＇s representative action has the natures of both representative action and derivative action. The shareholders＇right to appeal is based on the common interests of company. Such problems as litigant, burden of proof, litigation fees calculation, the ownership of the legal proceedings outcome in practice depend on the explicit definition of the procedure law. In the meantime we must break through traditional civil procedure law theories. Civil procedure law may take it as an opportunity to make adjustments to promote the development and prosperity of the whole economic law.