论股东派生诉讼制度

On the System of Lawsuit Derived by Shareholder

我国新《公司法》引入了股东派生诉讼制度,适应了我国市场经济发展与国际化接轨的需要,它对于制约公司董事、高级管理人员等内部人员滥用其权利,平衡股东与董事之间的权利,保护中小股东权益,具有十分重要意义。但是,该制度在原告的主体资格、被告的范围、公司在诉讼中的地位及前置程序等几个关键问题尚待进一步地完善。因此,文章在对股东派生诉讼制度进行概述的基础上,分析该制度在适用中尚存在的问题,通过比较并合理借鉴国内外先进的立法经验,结合我国实际情况,对我国新《公司法》中的股东派生诉讼制度提出完善建议。

The new ＂law of corporation＂ has introduced into our country the system of lawsuit derived by shareholder. It suits the need for the economic market in China to connect the international one. It is of great significance to restrict the people such as the director of corporations, the high - ranked managers from abusing their right, to balance the right between the shareholders and trustees, and to protect the fights and interests of the small shareholders. But, this system needs to be perfected in some key areas such as the main qualifications of the plaintiff, the range to be accused of, the position of the company in the law case, and the presage procedure. Therefore, the present paper analyzes some problems existing in the process of the application of this system based on its description. It also puts forward some suggestions by means of comparing and applying the advanced experiences in leg- islation for this new system based on the real situation in our country.