股东代表诉讼可诉性优化研究——以《〈公司法〉司法解释四》为基础

Optimization of Actionable Character of Shareholder Representative Litigation——Based on the Judicial Interpretation of the Company Law Ⅳ

股东代表诉讼是允许股东以自己名义为维护公司权益起诉的一种特殊诉讼。虽然我国引入这一制度已有十余年,但股东对提起代表诉讼的热情不高,这源于股东代表诉讼制度存在的诸多缺陷打击了股东的积极性。《〈公司法〉司法解释四》的颁布虽然解决了一些问题,但仍有不足之处亟待完善。鉴于此,建议以细化前置程序的豁免、适用举证责任倒置、认可善意败诉股东的费用补偿权等方式优化股东代表诉讼的可诉性。

Shareholder representative litigation is a special lawsuit that allows shareholders to sue in their own name to safeguard the rights and interests of the company. Although this system has been introduced in our country for more than ten years, the enthusiasm of shareholders for filing representative litigation is not high, which is due to many defects in the system of shareholder representative litigation, which have dealt with the enthusiasm of shareholders. Although the promulgation of Judicial interpretation IV of the Company Law has solved some problems, there are still some shortcomings that still need to be improved. In view of this, it is suggested that the litigability of shareholder representative litigation should be optimized by refining the exemption of pre-procedure, applying the inversion of burden of proof, and recognizing the right of compensation for expenses of shareholders in good faith.