实务与理论张力关系下的美国多重代表诉讼制度

Multiple Derivative Suit System in the United States under the Tension between Practice and Theory

多重代表诉讼制度起源于19世纪的美国判例法,早期判例采用不同理论适用多重代表诉讼,对股东起诉的程序要件设置严格要求。近年,特拉华州最高法院判例放宽程序要件,起到示范性作用。在以母子公司运营已成常态化背景下,我国引入多重代表诉讼已成必需。在完善单一股东代表诉讼之基础上,构建与之相协调的多重代表诉讼制度。即该制度应当适用于具有实际控制关系的母子公司中。母公司股东起诉前,应当向子公司董事会履行前置程序。当发生股份交换等股东非自愿放弃股份的情形下,股东依然享有诉权。为防止滥用诉讼,明确股东的起诉应以母公司发生实际损害为前提。

The system of multiple derivative suit originated from the case law of the United States in the 19th century. In the early cases, different theories were used to apply multiple derivative suit, which set strict requirements on the procedural elements of shareholder action. In recent years, the Supreme Court of Delaware has played an exemplary role in relaxing the procedural requirements. Under the background that the operation mode of parentsubsidiary company has become normal, it is necessary to introduce multiple derivative suit in China. On the basis of perfecting the representative action of a single shareholder, we should build a multiple derivative suit system which is coordinated with it, applying to the parent-subsidiary company with actual control relationship. Before the shareholders of the parent company file a lawsuit, they shall perform the pre-procedure to the board of directors of the subsidiary company. In the event of share exchange and other circumstances where the shareholders give up their shares involuntarily, the shareholders still have the right to sue. In order to prevent the abuse of litigation, it should be clear that shareholders’ litigation is based on the actual damage of the parent company.