实体与程序双重视角下股东权益的司法保护——以“股东代表诉讼”为切入点

Judicial Protection of Shareholders' Rights and Interests from the Dual Perspective of Substantive and Procedural Law——An Analysis Based on "Shareholder Derivative Suit"

公司法赋予股东诉权以保护自身权益,遏制权利滥用,股东代表诉讼已成为化解有限责任公司股东利益冲突的重要手段。司法实践分析表明,股东代表诉讼前置程序的定位、损害赔偿请求的归属以及裁判效力的主观范围等在实体上和程序上均有争议。从实体法理论角度而言,立基于股份有限公司的理论预设无法与两权分离不明显的有限责任公司融洽,致使股东代表诉讼无法发挥保护公司和股东利益的制度目的,股东提起诉讼激励不足。从程序法理论角度而言,作为特殊诉讼形态的股东代表诉讼亦需与我国诉讼理论相融合。然而,既有理论无法通过诉讼担当完整表达有限责任公司股东代表诉讼的双重利益性,未能合理配置特定股东的诉讼实施权,诉讼成本与诉讼收益不匹配。在有限责任公司内部治理陷入困境的情形下,应当对股东权益进行穿透式司法保护,允许法官直接豁免前置程序,赋予原告股东基于持股比例的胜诉利益分取请求权,方能给予弱势股东实质性救济。

The Company law entrusts shareholders with the right of action to prevent harm from abuse of rights by other shareholders.Shareholder derivative suit has become an important tool in resolving the conflict of shareholder interests in closely held corporations.Judicial practice shows that the necessity of the procedural prerequisites,attribution of the compensation and the scope of the judgment's subjective effects are disputed both in substantive and procedural aspects.In the view of substantive law,the theoretical assumption designed for public corporations is not completely compatible with closely held corporations whose separation of ownership and operation is incomplete,resulting in the failure of derivative suit's function as a mechanism for protecting the interests of corporations and shareholders,and the shareholders' unwillingness to file the litigation.In the view of procedural law,as a special litigation mechanism,the derivative suit should be integrated into the whole theoretical system of civil procedure law.However,existing litigation undertaking theories can't fully explain the dual interests of the derivative suit in closely held corporations,and are incapable of properly allocating the right of action to specific shareholders.Besides,there is also a gross mismatch between the attribution of the litigation benefits and the bearer of the litigation costs.In solving the internal governance problem in closely held corporations,it is necessary to apply penetrating judicial protection for shareholders' rights and interests,allow judges to exempt the plaintiff from procedural prerequisites,and grant plaintiff the right to claim damages based on the shareholding rate,so as to offer a sufficient relief to minority shareholders.