派生诉讼内在逻辑的拷问

Examination on the Inherent Logic of Derivative Actions

股东代表公司向法院提起派生诉讼,以对抗不法行为人。这一制度设置蕴含两大逻辑前提:即股东能代表公司以及法院可作为派生诉讼的最终决定者。股东之所以能代表公司提起派生诉讼,原因在于公司董事会和股东会的无能。法院介入公司内部事务虽备受批评,却因其本身天然的中立性和公正性,且缺乏其他独立组织或机构承担该角色,而顺理成章地肩负起该重任。

Individual shareholders are allowed to bring derivative actions to the courts against wrongdoers on behalf of the company. This means two logical premises： shareholders can bring an action on behalf of the company and the courts can be the final decision-maker in this kind of litigations. The reason why the first logical premise can be established is because of the inability of the board of directors and the general meeting. Although it is criticised that the courts should not interfere into the internal management of the company, it logically has to assume that role due to its natural neutrality and fairness as well as the lack of other independent organs.