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法學research proposal:股東衍生訴訟研究Research on Shareholder’s Deriva

時間:2019-04-04 16:20來源:未知 作者:anne 點擊:
Abstract of research研究摘要 本文主要研究香港公司條例下的股東派生訴訟制度。整個研究分為六個部分,以詳細闡述主要觀點。第一部分介紹了本研究的原因和意義。第二部分是香港派生訴訟概述
Abstract of research研究摘要
本文主要研究香港公司條例下的股東派生訴訟制度。整個研究分為六個部分,以詳細闡述主要觀點。第一部分介紹了本研究的原因和意義。第二部分是香港派生訴訟概述。第三部分是普通法中的衍生訴訟,突出了其歷史背景。第四部分論述了香港公司條例下派生訴訟的批判與改革。第五部分對衍生訴訟進行了評估和建議。最后得出了整個研究的結論。
This dissertation focuses on shareholder’s derivative litigation under Hong Kong Company Ordinance. The whole study is divided into six sections so as to develop the main opinions in detail. The first section introduce the reason and significance of this study. The second section is an overview of derivative litigation in Hong Kong. The third section refers to derivative litigation in the common law and highlights its historical background. The forth section discusses criticism and reform of derivative litigation under Company Ordinance in Hong Kong. In fifth section, this study intends to make assessments and suggestions to derivative litigation. Finally it draws conclusion of the whole study. 
 
1. Background背景
衍生訴訟是現代公司法最非凡的改革之一。本文旨在對《香港公司條例》第2014條的衍生訴訟行為進行批判性分析,試圖提出改進建議,使之更加有效、靈活。
在現代社會,衍生訴訟是保護股東特別是少數股東利益的主要救濟措施之一。在FOSS訴Harbottle案中,一些重要的概念,如“少數人欺詐”和“不法分子控制”已經被界定。保護股東利益至關重要,衍生訴訟是公司法不可分割的組成部分。然而,在現代公司法的歷史發展過程中,關于最小限度地干涉管理和適當的投資者保護的爭論卻引起了人們的廣泛關注。正如Reisberg(2007)所說,衍生訴訟無法避免挑戰,即過度依賴訴訟救濟和對股東的司法追索,以及對公司管理事務的不合理干預之間的中間過程。
Derivative action is one of the most extraordinary reforms of modern company law. This dissertation aims to conduct a critical analysis on the statutory of derivative action under Hong Kong Company Ordinance 2014, trying to put forward suggestions to improve the remedy, and make it more effective and flexible. 
In the modern world, derivative action is one of the major reliefs to protect the shareholder’s interests, especially minority shareholders. In case Foss v. Harbottle, some important concepts such as “fraud on the minority” and “wrongdoer control” had already defined. It is so important to protect shareholder’s interests, therefore derivative action is an integral part of company law. However, the debates about minimum interference with management and appropriate investor protection attract a lot of attention in the historical development of modern company law. Just as Reisberg (2007) says, derivative action cannot avoid the challenges, that are, a middle course between excessive reliance on a litigation remedy and judicial recourse for the shareholders, and unreasonable interference in the management affairs of the company.  
In different jurisdictions, the requirements to shareholder to initiate a derivative litigation are various. I have researched on some typical jurisdictions so as to make a solid theoretical foundation of this study. In the United States, corporate laws of states are different, and some of these states, such as California, Delaware, Nevada have instituted a lot of barriers to derivative litigation. American Bar Association set up complicated procedures for derivative litigation. Under the procedure, shareholders must file a demand on the board. Only when shareholders’ demand has been rejected, shareholders can file suit to the court. In the United Kingdom, it sets pre-existing rules. And according to corporate law in the United Kingdom, the purpose of derivative litigation is not to protect the shareholders, but to protect the corporation itself. In Europe, the derivative litigation are extremely rare. In many European countries, a minimum share is required to file a derivative litigation, and laws tend to prevent small shareholders from bringing lawsuits at the beginning. In New Zealand, it requires that the benefits to company must outweigh the costs of taking derivative action. And in India, under the clauses of oppression and mismanagement, derivative litigation can be brought out. 
It is a must to reach a balance between minority shareholders’ protection and company governance. In the UK, the Law Commission suggests to simplify and modernize the law.  Scholars also have their own concerns. They thought two much derivative actions would potentially increase the claims against directors, and that might cause another problem that overusing the derivative action may also increase the litigation cost and resources. As a way of shareholder remedy, derivative action is an effective approach to protect shareholder’s interests, we cannot ignore the weakness of derivative action. To be short, derivative action cannot prevent shareholders from abusing it, the the misuse of this action will definitely influence the business and management of companies. Therefore, under Hong Kong Company Ordinance, the key points of this dissertation is: how to achieve a balance between management freedom and shareholder protection? 
 
2. Literature Review
In this dissertation, it will introduce the concept, features, as well as the major functions of derivative litigation. 
2.1 Concept of derivative litigation
As a special system, the concept of derivative action first emerged in the countries of common law. Alan Dignam and John Lowrys (2006) suggests, when the controlling shareholders, senior managers and directors hurt company interests, the rest shareholders, especially minority shareholders, are entitled to file litigation against the wrongdoers on behalf of companies to protect company interests. 
As an important concept in modern company law, derivative litigation was derived in Britain in 1843 from case Foss V. Harbottle. In Foss V. Harbottle case, directors sold land which are owned by company at a high price, however the minority shareholders are not happy with the selling decision because they thought it damaged the company interests. Two of the shareholders filed litigation against the inappropriate actions of directors, but their appeal was rejected by the court. In the viewpoint of the court, the selling decision was appropriate because it was supported, accepted and affirmed by most of shareholders. To some extent, rules set up by the case Foss v. Harbottle were reasonable, to some extent, such rules are good to company management. However, it also revealed a fatal weakness of company governance, that is, if a small number of directors, senior managers and shareholders are in complete control of companies and majority shareholders, who and how to protect the legal interests of minority shareholders? 
In the United States in 1975, derivative litigation was first termed in case Wallersteiner v Moir. In this case, it told the difference between derivative litigation and representative litigation. As Alan Dignam & John Lowrys (2006), in derivative litigation, wrongdoers may have the power and the chance to prevent companies from suing. This case also told the difference between derivative litigation and general civil litigation. In the former litigation, a pre-litigation procedure is a must so as to prevent the abusing of derivative litigation which might lead to necessary judicial cost. It is acceptable that cautious attitude, and the exhausted of internal relief are the premises of derivative litigation.
2.2 Features of derivative litigation
Normally, companies are entitled to initiate derivative litigation by themselves as independent entities. But if the wrongdoers are in the controlling position of companies, they may not want to exercise their rights positively. Under the circumstances, shareholders who think their legal rights are damaged can exercise their subrogation rights to file the litigation as as to protect their own rights. It’s worth to point out, derivative litigation are initiated on behalf of the companies’ interests, so as to further protect minority shareholders’ interests. In different countries, requirements of plaintiffs in derivative litigation are different. In the United States, the major concern is to own shares of the company; while in Japan, it has some restrictions, that are, the plaintiffs numbers and the exhaustion of internal remedies.
In derivative litigation, shareholders files lawsuit against wrongdoers on behalf of the company. Even the shareholders win the lawsuit, they cannot enjoy the compensations because the compensations are supposed to belong to company. Only within the scope of their shareholding proportions they can get their benefits. Also, since there are possibilities that minority shareholders of company are complicit to pursue private interests, a number of restrictions are set by many countries to prevent the malicious litigation, including cost of commitment, eligibility parties, and so on. (Tony J. Boyle, 1997)
2.3 Functions of derivative litigation
To provide remedy to company when the company is suffering from wrongdoers with controlling position is a major function of derivative litigation. Directors, senior managers might damage the company interests, under that circumstances, they will not want to initiate any actions against themselves. So the court allows other shareholders to file litigation to protect company interests, as well as the interests of shareholders. (Andrew Keay, 2006) The rights exercised by shareholders in derivative litigation derived from companies. 


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