Category: Money Tips Date: 2007-06-11
Comrade Zhou:
Models accounted for the majority shareholder in China's securities market has become a "cancer" to curb irregularities in major shareholders, need to use legal means. Read your newspaper on "ST Longchamp shareholders Yan-ming, to prosecute the major shareholder", "on behalf of minority shareholders in litigation or into a 'life-saving straw'" coverage, I think the new "Company Law" after the implementation of minority shareholder activist addition of a road. So, in practice, shareholder lawsuits on behalf of the how to do it? Shareholders how high the cost to prosecute? Shareholders, the extent of risk involved in the proceedings?
Mr. Yu Shanghai
Mr. Yu:
Also known as shareholder derivative suit on behalf of litigation, subrogation litigation, is the effect of lazy when the company investigated by means of litigation relating to infringement of civil officers, and the realization of other rights, the shareholders are legally entitled to the benefit of the company pursuant to the statutory procedures on behalf of the company filed litigation.
New "Company Law" for the shareholder lawsuit on behalf of the system made it clear that ended when the company implemented a major shareholder of the company's interests against the behavior of small shareholders, no laws era. But the new "Company Law" is only given under certain circumstances, shareholders, representatives of right of action, but on the specific proceedings, and does not require that much to rely on with the civil law and relevant judicial interpretation of the future a combination of purposes. Here the light of the Civil Procedure Law and the relevant case analysis of shareholder proceedings on behalf of some particular problem.
Where the courts should be a
Shareholder suit on behalf of the court by which the jurisdiction of a shareholder lawsuit filed on behalf of the first problem encountered. On behalf of the defendant is a shareholder lawsuit against the corporate interests of the people, generally the company's insiders. If in accordance with Code of Civil Procedure, "the plaintiff on the defendant," the general principles, it will be against the interests of the company of the person's domicile jurisdiction of the Court. However, taking into account the company itself or on behalf of other shareholders will participate in the proceedings, in order to facilitate these people to participate in the proceedings, but also conducive to the court to ascertain the facts, national company law provide for shareholder lawsuits by the company on behalf of the domicile of the Court's jurisdiction. According to China's "Company Law" and "Company Registration Regulations" requirement: The company with its main office is located in residence. Therefore, our shareholders on behalf of the jurisdiction of the court proceedings should be the seat of the court the company's main office.
Who are the main plaintiffs in the appropriate
"Company Law" Article 152 states: a limited liability company's shareholders, Inc. for more than a continuous一百八十日alone or together, more than 1 percent of shares held by the company's shareholders, may request in writing the board of supervisors or the board of supervisors of limited liability without the company's supervisors to the people's court proceedings; Article 153 provides that: directors, senior management personnel violate laws, administrative regulations or the provisions of the Articles of Association and damage the interests of shareholders, shareholders can sue to the people's court. It can be seen, China's legislature adopted a "At that time shareholders principle" and the "holding period of the principle of" a combination of practices, but provides for a right of action on behalf of shareholders, and does not require creditors of the company, and other appropriate parties on behalf of Georgia lawsuit the right circumstances.
Who should be the defendant
China's "Company Law" provides that: directors, senior management personnel of this law provided for in Article one hundred and fiftieth circumstances, limited liability company's shareholders, Inc. for more than a continuous一百八十日alone or together, holds 1% or more shareholders, the board of supervisors may request in writing or not to set up a limited liability company board of supervisors of supervisors to the people's court proceedings; supervisors of this law provided for in Article one hundred and fiftieth circumstances, the aforementioned shareholders, board of directors may request in writing or not a board of directors of the limited liability company's executive director of the people's court proceedings. Provides that: infringement of the legitimate rights and interests of the company, causing losses to the company, the shareholders of the provisions of the first paragraph of this article can be in accordance with the provisions of the preceding two to the people's court proceedings. Also provides that: directors, senior management personnel violate laws, administrative regulations or the provisions of the Articles of Association and damage the interests of shareholders, shareholders can sue the people's court. It is clear from our country on behalf of the defendants include: directors, senior managers, supervisors, and violation of the legitimate rights and interests of the company of others. Including the widest possible range, can effectively protect the legitimate rights and interests of shareholders.
Operator plaintiff or the defendant's operator
On behalf of the litigation, the company's legal status is very special, as a plaintiff, defendant or third person? Academics are divided on this, countries have different requirements. In my opinion, the company can not be accused, because the company is the injured party, if the plaintiff wins the case, their interests attributable to the company that if the company as a defendant, then the self-contradictory; the same time, because the company's authority (director or manager) refused to prosecute their own name are not classified as an independent claim of the third person; because of litigation claims on behalf of the plaintiff shareholders, the purpose is to restore the company's interests, the proceedings should not be classified as participants. If the lawsuit because the company as participants, or the support of the defendant, or the support of the plaintiff, which is contrary to the purposes of the proceedings on behalf of. Therefore, the plaintiff company as essentially the most appropriate. If the shareholders in favor of the plaintiff, their interests vested in the company.
Is there a prerequisite for litigation
This can be regarded as representative of the shareholders of the pre-litigation procedure, "Company Law" provides that: shareholder rights have been violated, "the board of supervisors may request in writing or not to set up a limited liability company board of supervisors of supervisors to the people's court proceedings; supervisors of this law first hundred fifty cases provided for in Article, the aforementioned shareholders, board of directors may request in writing or not a board of directors of the limited liability company's executive director of the People's Court proceedings. "when" the board of supervisors, no board of supervisors limited liability company, or the board of directors, the Executive provisions of the preceding paragraph, the directors received the written request of shareholders refused to initiate proceedings, or from the date of receipt of the request is not filed within thirty days of action, or the urgency of the situation does not immediately sue the company will cause irreparable damage to the interests of "the , shareholders can "have the right for the company's interest to his own name directly to the people's court proceedings." ST Longchamp in the case, lawyers Yan Ming is to the shareholders as, first wrote to the company's supervisory board, the request that the Council "according to the law to the competent people's court proceedings."
How income is more reasonable litigation costs
Under the Supreme People's Court, "People's Court lawsuit charging" requirement, for property cases, according to the amount or the amount of the price dispute, according to a certain percentage of pay, of which more than 50000-100000 yuan part, by 4% of pay; more than 10 10000-200000 yuan part, by 2% of pay; Chaoguo 200000-500000 yuan part, by 1.5% of pay; Chaoguo 500000-1000000 yuan part, by 1% to pay; more than 1 million yuan part, by 0.5% to pay. The shareholders of the amount requested on behalf of the proceedings are generally larger, should the charges for property cases in accordance with standard fees and charges, then the shareholders of the company's interest to bring proceedings on behalf of shareholders to be prepaid a substantial amount of litigation costs and attorneys fees are not included in litigation costs, intangible being increased litigation costs. Therefore, on behalf of shareholder lawsuits is not equivalent to the property in general litigation, our target price in the calculation of the amount of litigation, it is preferable to subject the amount of non-property litigation is calculated. This can reduce negates the subject matter of the proceeding is instituted to encourage the shareholders to launch lawsuits on behalf of shareholders. Of course, the ultimate cost of litigation by the losing party pay. Through reconciliation between the plaintiff and the defendant for the closure of proceedings, the costs and results of its own agreements to resolve, the law does not make provision, but the reconciliation must be conducted with the participation of judges in order to avoid the expense of other shareholders.
What is the risk of the plaintiff shareholders
In principle, shareholders filed on behalf of litigation, if successful, the shareholders the right to request the company to be compensated for their litigation costs. Compensation for such costs has encouraged the interests of those who sued the company's shareholders, is fair and reasonable. China in legislation may also refer to such principles.
Shareholder litigation as a lawsuit on behalf of, naturally, be on the losing side. At this time, the liability of shareholders the company was mainly a result of the kinds of compensation for damage suffered by the proceedings, including the company for the conduct of the kinds of proceedings to pay the costs of legal counsel. In the United States, given the kinds of action are mostly based on the "Unpaid after a win," conditions by counsel, "packaged" litigation, and therefore, the majority of shareholders do not close the case through the court, but by lawyers and the defendant the end of the settlement agreement between the parties The. In this case, even if the shareholders lose, its the responsibility of the company can pay its attorney, therefore, affect the interests of its shareholders, not significant. In Japan, the only shareholders of the start, losing malicious damage to the company's liability to pay, "If the shareholder is not malicious" in the lost time "to the company does not pay the liability." Therefore, there is a malicious lawsuit filed on behalf of the shareholders, our country in the formulation of new judicial interpretation, but also provide for its commitment to the company's resultant loss of liability.
