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股东派生诉讼制度是全世界各国公司法立法中规定的一项十分重要的制度。其作用一方面体现在它在维护股东权益时的优点,尤其是中小股东的权益。而另一方面其有利于强化公司治理结构,保障公司法立法所倡导的各方利益均衡。公司法将管理公司事务的权利和执行具体业务的权利赋予给公司的董事和高级管理人员时,也同样规定了他们对公司及股东们承担的各种义务和责任。若因为董事、高级管理人员及监事等违反了法律具体规定的禁止性和强制性规定而使公司和股东遭受到相应的损害,那么公司股东就有权利行使法律赋予其的诉权来追究相应的董事和高管等的法律责任。本文旨在经过相对多方面地较为详细地介绍我国的股东派生诉讼制度,同时结合我国的法治进程和实际情况为我国的股东派生诉讼制度提出一些建设性的意见。
The system of shareholder derivative litigation is a very important system stipulated in the company law legislation of all countries in the world. On the one hand, its role is reflected in its advantages in the protection of shareholders’ equity, especially the rights and interests of minority shareholders. On the other hand, it is conducive to strengthening the corporate governance structure and safeguarding the interests of all parties advocated by the company law legislation. When the corporate law gives the directors and senior management of the company the right to manage the affairs of the company and the execution of specific businesses, it also sets forth the various obligations and responsibilities that they have to the company and its shareholders. If the directors and senior management personnel and supervisors breach the prohibition and mandatory provisions stipulated by laws, which cause the corresponding damage to the company and its shareholders, the shareholders of the company have the right to exercise the right of action granted by law to hold the relevant directors And executives and other legal responsibilities. The purpose of this paper is to introduce China’s shareholder derivative litigation system in more detail and in relative terms. At the same time, some constructive suggestions are put forward for our country’s shareholder derivative litigation system based on the progress of the rule of law in our country.