英国派生诉讼的最新发展:普通法的回归

The Recent Development of Derivative Actions In UK: the Return of Common Law

股东派生诉讼源于英国普通法,历经百年发展,因其诉讼程序的繁杂、裁判标准的不明确等受到诟病。2006年的公司法以制定法的形式抛弃普通法,对派生诉讼进行重新规制。但法官在最新的案例中对新规定的解释裁判仍不清晰,包括对派生诉讼程序的混淆、具体标准的不确定,如善意、替代救济方式等,甚至在很多规则上仍借助于普通法的解释,派生诉讼的发展趋势依然离不开普通法的规则。

Derivative action was originated from the UK, but it was criticized because of its unclear criterion and complicated procedures over hundreds of years. Derivative actions were enacted in Company Acts 2006 and thus the common law was replaced. However, the new statutory law is still unclear and confused for the court to interpret the rules. For example, the procedure of derivative actions and the criterion of good faith are obscure and blur. Moreover, the common law was adopted in many rules. Therefore, the development of new statutory derivative actions cannot go further without the rules of common law.