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我国2005年《公司法》首次规定了股东派生诉讼制度,给中小股东维护自身合法权益及我国公司健康运行提供了重要保障,但我国的派生诉讼主体不甚明确,制度成本过大,中小股东行使该诉权困难,无诉讼激励机制,配套措施不健全,可能出现烂诉等问题,使得该制度在运行当中并没有完全发挥其应有的效果。文章从派生诉讼的由来,性质及其价值着手,试图通过对诉讼主体加以明确,降低起诉的门槛,简化诉讼程序,增加股东派生诉讼的鼓励机制等手段,来改善我国股东派生诉讼的运行效果。
The Company Law of 2005 stipulates for the first time a system of shareholder derivative litigation, which provides an important guarantee for small and medium shareholders to safeguard their own legitimate rights and interests as well as the healthy operation of Chinese companies. However, the subject of derivative proceedings in China is not clear and the system cost is too large. The right to appeal, the non-litigation incentive mechanism, the unsound supporting measures, the possible occurrence of rotten litigation and other issues make the system not fully exert its due effect during operation. Starting from the origin, nature and value of derivative lawsuits, the article attempts to improve the operating effect of derivative action of shareholders in our country by means of clarifying the subject of litigation, lowering the threshold of prosecution, simplifying litigation procedure and increasing the encouragement mechanism of derivative action of shareholders.