股东代表诉讼制度的程序思考

新《公司法》规定的股东代表诉讼制度对于切实保护中小股东利益,完善公司法人治理结构,防止由于公司所有权与经营权的分离所产生的内部控制,促进中国股市的健康持续发展具有意义。但程序法关于该制度诉讼规定的缺失,使其实施缺乏可操作性。本文从程序角度入手,对原告诉权基础、资格条件,前置程序,举证责任,当事人诉讼地位等程序问题做了分析,并提出建议,以期对完善股东代表诉讼制度有益。

Thought on the procedure of Shareholders Representative Litigation

Shareholders Representative Litigation prescribed by new Company Act is significant to protect the benefit of minority stockholders, to perfect the managing structure of the corporation, to prevent the interior control for the separation of the company's ownership and prosecution and to promote the healthy and persistent development of China's stock market. But the imperfect of the lawsuit system in Procedure Act made it lack of maneuverability to actualize it. The article started from the angle of the procedure to analyze the accuser's lawsuit basis, qualification, previous procedure, onus probandi and the party's lawsuit status, etc. It also put forward some advice which would be beneficial to perfect Shareholders Representative Litigation