中國 會社法上 株主代表訴訟制度에 관한 考察

A shareholders’ derivative suit system is not only the measure of controlling company’s director, or board of director’s abuse of rights control device but also has a risk of strike suit under the circumstance of shareholders who are eligible for plaintiff, overuse a shareholders’ derivative suit institution for the purpose of their benefit. Accordingly, a shareholders’ derivative suit has both usefulness and the possibility of overuse. Thus, there should be a suitable balance and agreement between the rights of supervision on the company’s director, or board of director for the minority of shareholders who are eligible for plaintiff and healthy and clear rights of the execution of one’s duty for the company’s director, or board of director. China introduced a shareholders’ derivative suit as new provisions in Chinese new company law reformation in 2005. (§150~§153) The main purpose of this introduction is to regulate by the law, by means of, to correspond to globalized economy system, to improve corporative governance and to protect minority of shareholders from interest plan. However, there are small numbers of case using shareholders’ derivative suit up to now. Consequently, it is examined from various points to revitalize the shareholders’ derivative suit. Firstly, in the case of a stock company that is under the regulation of Chinese new company law, it is necessary to improve widely the rights of litigating shareholders’ derivative suit for shareholders who continuously owns a stock for more than 180 days individually or in total of more than 1%. Or, it can be improved as individual shareholder’s right like in America and Japan. Moreover, it is necessary to improve the condition of demanding account book and documents as it is difficult to collect information for the minority of shareholders who can institute shareholders’ derivative suit and they have to charge proof responsibility on the process of litigation. At present, overuse of shareholders’ derivative suit’s institution is not a serious problem to concern in China. However, if shareholders’ derivative suit system revitalizes, there will be a frequent institution on inappropriate litigation from shareholders for the purpose of their benefit and strike suit. To solve this problem, it is explained in detail above. In addition, to cultivate excellent talents for the company with the solution of preventing economic crisis should be studied.