从比较法角度看我国公司股东派生诉讼的几个问题

A Study of Shareholders' Derivative Lawsuit from the Perspective of Comparative Law

随着社会经济发展,交易活动日益频繁,作为经济活动重要主体的公司所面临的纠纷也不断复杂化。由于所有权与经营权的分离,股东与公司经营管理层的冲突也日益加剧,增进公司法的可诉性已成为完善公司治理的重要话题。股东诉讼,是指由股东提起的诉讼,可分为直接诉讼和股东派生诉讼两类。笔者认为,股东诉讼制度应以公平、效率和便利为原则,在三者不能兼顾时,应以维护股东权益为主导。我国股东诉讼制度的完善可以进一步借鉴美、日等国的先进经验,以求其自身的进一步完善。

The economic development has lead to a complex way of transaction. As a major role in social activities, the company has to face a variety of conflicts. Moreover, with the separation of ownership and management power, the conflicts between shareholders and managers are becoming more and more serious. Under such circum- stances, enhancing shareholders＇right of action is a wise way to choose. Generally speaking, there are two kind of lawsuits for shareholders： the Direct Lawsuit and the Shareholders＂ Derivative Lawsuit. The author of the paper thinks that shareholder litigation system should persevere the principle of fairness, efficiency and convenience. In case of failure to balance equity of the three, interests of the shareholders should be predominately protected.