派生诉讼何以可能:反思与超越——以日本派生诉讼的发展为出发点

传统理论认为,原告股东在决定是否提起派生诉讼时以理性经济人自居,基于成本与收益进行衡量。日本诉讼费用改革后派生诉讼案例急剧上升则是该传统理论强有力的佐证。然而,这一传统观点不仅在逻辑上难以自圆其说,也不符合日本派生诉讼的实际情况,日本股东提起派生诉讼很大程度上受到准理性和有限理性行为的影响。日本这一实践对我国派生诉讼的有效实施无疑可带来启发:即在反思派生诉讼利用率为何如此之少时,不应仅关注制度设计,还应超越制度本身,考量该制度得以实施与发挥效用的其它外在因素。

How Could Derivative Actions be Possible: Reflection and Transcendence-In view of the Development of Japanese Derivative System

The prevalent and traditional theory recognizes that a plaintiff shareholder would calculate the cost-benefit before bringing derivative actions while act as a rational-economic man.The sharp rise of Japanese derivative litigation cases after the change of litigation costs is a strong evidence of the traditional theory.However, this traditional argument cannot be justified either in logic or in reality.The reason why many cases increased significantly was mainly because of the influence of quasi-rational behaviour and purely irrational behavior in Japan.This can inspire China`s derivative action as its implementation is extremely rare.It is argued that other factors which may affect derivative actions and beyond the system should not be neglected besides focusing on system design itself.