基于裁判分析的我国股东代表诉讼制度检视与完善进路

The Improvement of Shareholder Representative Litigation System in China Based on Empirical Analysis

股东代表诉讼,又称派生诉讼、股东代位诉讼,是指当公司的合法权益受到不法侵害而公司却怠于起诉时,公司的股东即以自己的名义起诉、所获赔偿归于公司的一种诉讼形态。基于对股东代表诉讼司法裁判的统计分析,发现该制度存在原告资格过于苛刻、被告范围模糊不清、前置程序豁免情形、原告股东举证困难等缺陷,提出合理调整原告资格、明确界定被告范围、完善前置程序规定、完善举证责任分配等建议。

Shareholder representative litigation, also known as derivative litigation and shareholder subrogation litigation, refers to a litigation form in which the shareholders of a company file a lawsuit in their own name and receive compensation from the company when the legitimate rights and interests of the company are wrongfully infringed and the company fails to file a lawsuit. In this paper, based on the statistical analysis of shareholder representative litigation judicial cases and found that the system has the plaintiff qualification is too harsh, the defendant range, prepositional procedure immunity defects such as case, the plaintiff shareholders proof difficulties,put forward the reasonable adjustment of the plaintiff qualification, clearly define the scope of the defendant,perfecting the prepositional procedure rules, perfect the burden of proof allocation.