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公司法中的股东派生诉讼机制开始形成于英国,起源于普通法系的司法实践,是衡平法创设的,作为一种让侵权人对公司承担责任的诉讼机制。这一重要的诉讼机制被认为是英美法系的一大天才发明。我国2005年修订后的《公司法》首次在立法上确立了股东派生诉讼制度。然而立法上的新动向必然会对司法实践产生重大影响,以改变过往司法实践中的不合理做法。因此,在司法实践中不应拘泥于法条的诠释,而应结合我国股东派生诉讼的实际情况不断反思制度及运作程序问题,以达到既满足社会需要,又方便司法实践的目的。
The lawsuit mechanism of shareholder derivative in the company law began to form in Britain. It originated from the judicial practice of the common law system and was created by the Equity Law as a litigation mechanism that allowed the infringer to take the responsibility of the company. This important litigation mechanism is considered as a gifted invention of Anglo-American law. For the first time in our country, the “Company Law” revised in 2005 has established the shareholder derivative litigation system. However, the new trend of legislation will inevitably have a significant impact on judicial practice in order to change the unreasonable practices in the judicial practice in the past. Therefore, judicial practice should not rigidly adhere to the interpretation of the law, but should be based on the actual situation of the shareholder derivative litigation in our country to constantly reflect on the system and operational procedures in order to meet both social needs and facilitate judicial practice.