中日股东代表诉讼激励与约束制度安排立法比较

The Legislative Comparison of the Institutional Arrangement of Restriction and Promotion of Shareholder Representative Lawsuit between China and Japan

股东代表诉讼具有代表诉讼和代位诉讼的双重性质决定了要对其进行激励与约束。不同的激励与约束举措及其强度表明了不同的立法政策。我国股东代表诉讼可分为追究经营者与非经营者责任诉讼两种类型。针对这两类诉讼应当采用不同的激励与约束制度。

The dual characters of representative lawsuit and subrogate lawsuit of the shareholder representative lawsuit determine to restrict and promote it. Different acts and intension of restriction and promotion indicates the different legislative policy. The shareholder representative lawsuit can be divided into two types： lawsuit of running the liability of the operator and lawsuit of running the liability of the non-operator in our country. We should adopt different systems of restriction and promotion to the two kinds of lawsuit.