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新《公司法》的颁布使得股东尤其是小股东提起派生诉讼有法可依,但实践当中提起派生诉讼的原告往往是势单力薄的中小股东,其在举证能力上与公司高管、大股东、实际控制人等的不对等性决定了此类主体在诉讼中往往居于不利地位,加之本身对公司经营状况知情难、取证时容易受到被告的阻挠等因素,诉讼权利难以得到有效保障,更不能产生对胜诉的合理期待。因此,从诉讼程序上完善股东派生诉讼证明责任的分配方式,确立不完全的举证责任倒置原则,是有效推动股东派生诉讼制度发展的根本保障。
The promulgation of the new “Company Law” made the shareholders, especially the minority shareholders, have a lawsuit to initiate derivative litigation. However, the plaintiffs who initiated derivative litigation in practice tend to be the small and medium-sized shareholders with a weak ability of proof. The inequality of shareholders and de facto controllers determines that such subjects are often disadvantaged in litigations. In addition, they are easily informed of the company’s operating conditions and are vulnerable to the obstruction of the defendants when obtaining evidence. Therefore, it is difficult to effectively safeguard litigation rights, and more Can not produce a reasonable expectation of success. Therefore, it is an essential guarantee to promote the development of shareholder derivative litigation system to improve the distribution method of burden of proof of shareholder derivative litigation and establish incomplete principle of inversion of burden of proof.