论派生诉讼适用中的利益平衡
发布时间：2018-09-19 11:38
【摘要】： 派生诉讼制度是指公司的合法权益受到他人的侵害,特别是受到控股股东、董事或公司其他管理人员的侵害,而公司怠于追究侵害人的责任时,符合法定条件的股东为了公司的利益,依照法定程序,以自己的名义代为公司提起诉讼,追究侵害人民事责任的诉讼制度。此制度在公司法的发展史占有重要的地位,由于历史原因。我国的公司法起步较晚,派生诉讼制度在很长一段时期内都是一个空白,直到2005年我国修订了《公司法》后,派生诉讼制度在立法上才得以正式确立,这对保护中小股东的利益,降低投资者的风险系数,加强股东对公司经营管理的监督,完善公司的内部治理结构都起到了重要的积极作用。但是新《公司法》对派生诉讼的规定还过于笼统,尚缺乏一定的操作性,本文站在维护派生诉讼适用中各方利益平衡的角度出发,着重研究了诉讼各方当事人尤其是原告的具体权利和义务以及法院在具体案件适用中应发挥的作用和具体权责,并对我国派生诉讼制度的具体适用提了自己粗浅的看法。 论文正文主要分四部分: 第一部分对派生诉讼的基本定义,以及它和股东直接诉讼的区别做了简要的介绍,并且简要介绍了派生诉讼制度在我国发展的历程。 第二部分对派生诉讼制度在实际操作过程中所主要考虑和体现几对矛盾体的平衡进行了分析,首先派生诉讼制度充分考虑了公司所有者,特别是中小股东和公司经营管理者之间的相互制衡;其次在制度的设计上还体现了鼓励正当诉讼和限制恶意诉讼之间的平衡;最后派生诉讼又同时合理解决了公司内部治理和外部司法干预之间的矛盾。 第三部分从实际操作出发,探讨了各诉讼当事人在诉讼过程中各项权利和义务,由于派生诉讼原告原告地位的特殊性,此部分重点讨论了原告在诉讼过程中的权利和义务。原告在派生诉讼过程中享有的权利有:附条件的诉讼提起权;间接受益权;有限的和解权;胜诉后的费用赔偿请求权,所要承担的义务有:主要的举证义务;原告股东须先行负担诉讼的各项费用;提供诉讼担保的义务;还有就是原告在败诉时所要承担的赔偿义务。 第四部分对法院在派生诉讼具体操作过程应起到的作用和具体的职责作了简要的列举和分析。法院在派生诉讼审理中地具体职责有:公平合理地分配举证责任和依职权调查取证;通知义务;依法保护公司利益,防止股东滥用诉权。 文章最后一部分对我国的派生诉讼制度从实体和程序两方面提出了自己的几点意见和建议:明确公司的董事、经理等高管的具体勤励义务,划出他们的权利红线;明确诉讼担保的具体标准,便于法官进行统一判断;区分原告的主观倾向,恶意应向公司进行赔偿,善意可对公司的损失适当进行补偿。
[Abstract]:Derivative litigation system means that the legitimate rights and interests of a company are infringed upon by others, especially by controlling shareholders, directors or other managers of the company. For the benefit of the company, the shareholders who meet the legal conditions, in accordance with the legal procedure, in their own name, bring a lawsuit on behalf of the company, and investigate the litigation system of the civil liability of the aggressor. This system plays an important role in the history of company law, because of historical reasons. The company law of our country starts relatively late, the derivative litigation system is a blank for a long period of time, until 2005 when our country revised the Company Law, the derivative litigation system was not formally established in the legislation. This has played an important and positive role in protecting the interests of minority shareholders, reducing the risk coefficient of investors, strengthening the supervision of shareholders on the operation and management of the company, and perfecting the internal governance structure of the company. However, the provisions of the new Company Law on derivative litigation are still too general and lack some maneuverability. This article is based on the view of maintaining the balance of interests of all parties in the application of derivative litigation. The specific rights and obligations of the litigants, especially the plaintiffs, as well as the roles and responsibilities of the courts in the application of specific cases are emphatically studied, and their own views on the specific application of the derivative litigation system in our country are put forward. The main body of the thesis is divided into four parts: the first part briefly introduces the basic definition of derivative action and the difference between derivative litigation and shareholder direct action, and briefly introduces the development of derivative litigation system in China. The second part of the derivative litigation system in the actual operation of the main consideration and reflect the balance of several pairs of contradictions, the first derivative litigation system fully considered the owners of the company, Especially the checks and balances between the minority shareholders and the managers of the company; secondly, the balance between encouraging proper litigation and restricting malicious litigation is reflected in the design of the system. At last, the derivative suit reasonably resolves the contradiction between internal governance and external judicial intervention. The third part discusses the rights and obligations of the litigants in the process of litigation. Because of the particularity of the plaintiff's status in derivative litigation, this part focuses on the rights and obligations of the plaintiff in the process of litigation. In the process of derivative action, the plaintiff has the following rights: the right of suing with conditions; the right of indirect benefit; the right of limited settlement; the right of claim for compensation for expenses after winning a lawsuit, the obligation to bear: the main burden of proof; The plaintiff shareholders have to bear the costs of the action, the obligation to provide the surety, and the liability of the plaintiff in the event of losing the lawsuit. In the fourth part, the author makes a brief enumeration and analysis of the functions and duties that the court should play in the specific operation process of derivative litigation. The specific duties of the court in the hearing of derivative actions include the fair and reasonable distribution of the burden of proof and the investigation and collection of evidence ex officio, the obligation of notification, the protection of the interests of the company according to law, and the prevention of abuse of the right of action by shareholders. In the last part of the article, the author puts forward some opinions and suggestions on the derivative litigation system in our country from the aspects of entity and procedure: make clear the specific duty of the directors, managers and other executives of the company, and draw out their right red line; It is convenient for the judge to make a unified judgment, to distinguish the subjective tendency of the plaintiff, to compensate the company with malice, and to compensate the loss of the company in good faith.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
本文编号：2250019
[Abstract]:Derivative litigation system means that the legitimate rights and interests of a company are infringed upon by others, especially by controlling shareholders, directors or other managers of the company. For the benefit of the company, the shareholders who meet the legal conditions, in accordance with the legal procedure, in their own name, bring a lawsuit on behalf of the company, and investigate the litigation system of the civil liability of the aggressor. This system plays an important role in the history of company law, because of historical reasons. The company law of our country starts relatively late, the derivative litigation system is a blank for a long period of time, until 2005 when our country revised the Company Law, the derivative litigation system was not formally established in the legislation. This has played an important and positive role in protecting the interests of minority shareholders, reducing the risk coefficient of investors, strengthening the supervision of shareholders on the operation and management of the company, and perfecting the internal governance structure of the company. However, the provisions of the new Company Law on derivative litigation are still too general and lack some maneuverability. This article is based on the view of maintaining the balance of interests of all parties in the application of derivative litigation. The specific rights and obligations of the litigants, especially the plaintiffs, as well as the roles and responsibilities of the courts in the application of specific cases are emphatically studied, and their own views on the specific application of the derivative litigation system in our country are put forward. The main body of the thesis is divided into four parts: the first part briefly introduces the basic definition of derivative action and the difference between derivative litigation and shareholder direct action, and briefly introduces the development of derivative litigation system in China. The second part of the derivative litigation system in the actual operation of the main consideration and reflect the balance of several pairs of contradictions, the first derivative litigation system fully considered the owners of the company, Especially the checks and balances between the minority shareholders and the managers of the company; secondly, the balance between encouraging proper litigation and restricting malicious litigation is reflected in the design of the system. At last, the derivative suit reasonably resolves the contradiction between internal governance and external judicial intervention. The third part discusses the rights and obligations of the litigants in the process of litigation. Because of the particularity of the plaintiff's status in derivative litigation, this part focuses on the rights and obligations of the plaintiff in the process of litigation. In the process of derivative action, the plaintiff has the following rights: the right of suing with conditions; the right of indirect benefit; the right of limited settlement; the right of claim for compensation for expenses after winning a lawsuit, the obligation to bear: the main burden of proof; The plaintiff shareholders have to bear the costs of the action, the obligation to provide the surety, and the liability of the plaintiff in the event of losing the lawsuit. In the fourth part, the author makes a brief enumeration and analysis of the functions and duties that the court should play in the specific operation process of derivative litigation. The specific duties of the court in the hearing of derivative actions include the fair and reasonable distribution of the burden of proof and the investigation and collection of evidence ex officio, the obligation of notification, the protection of the interests of the company according to law, and the prevention of abuse of the right of action by shareholders. In the last part of the article, the author puts forward some opinions and suggestions on the derivative litigation system in our country from the aspects of entity and procedure: make clear the specific duty of the directors, managers and other executives of the company, and draw out their right red line; It is convenient for the judge to make a unified judgment, to distinguish the subjective tendency of the plaintiff, to compensate the company with malice, and to compensate the loss of the company in good faith.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91
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