| （摘要内容经过系统自动伪原创处理以避免复制，德语论文，下载原文正常，内容请直接查看目录。） 古代企业轨制中,企业一切权和运营权的分别形成了企业股东和企业董事等治理人员的好处抵触;企业实施股权对等准绳和本钱多半决议准绳,外面上对等,现实上会形成多半对多数的损害,招致年夜股东和小股东的对峙。这两个抵触是企业外部管理的焦点,完美企业外部管理构造,症结要处置好这两个抵触。股东派生诉讼轨制作为完美企业外部管理构造、掩护投资者权益的利器而遭到看重,被引入列国的企业司法轨制中。股东派生诉讼最后来源于英美法系,并慢慢为年夜陆法系国度所继受。然则,德国立法者在制订《德国商法公则》的时刻,却成心的摒弃了这一轨制,制订了取代该轨制的法定强迫告状轨制。该法定强迫告状轨制并未起到预期的感化,德国立法者于2017年修订德国《股分法》,引入了股东派生诉讼轨制,其目标就是为了完美企业外部管理构造和增强对投资者特别是小股东的掩护。在引入该轨制时,德国立法者汲取了之前法定强迫告状轨制的经历和经验、自创了美国等世界其他国度对于股东派生诉讼轨制最新的成长、斟酌到本国特定情形和司法系统,制订了先辈的股东派生诉讼轨制。我国2017年修订的《企业法》也引入了股东派生诉讼轨制,然则该划定却由于过于简略、粗拙和不完全而备受批驳。本文基于对德国股东派生诉讼的研究,努力于对完美我国股东派生诉讼轨制提出建议。固然,德国的股东诉讼轨制其实不是完善无瑕的,本文分歧于其他文章,仅仅泛泛引见德国股东派生诉讼,而是基于德公法律界对于股东派生诉讼的最新评论辩论和对德国股东派生诉讼详实剖析的基本上,“拿来”为我所用。本文重要采取了比拟、汗青剖析和功效剖析等办法研究德国股东派生诉讼轨制,对完美我国股东派生诉讼轨制供给参考。基于此,本文重要分为以下几个部门第一部门,德国股东派生诉讼轨制的树立。在该部门,具体引见了德国立法者最后摒弃股东派生诉讼轨制的缘由、法定强迫告状轨制的成长,和终究引入股东派生诉讼轨制的汗青配景。第二部门,诉讼允许法式。在该部门,重要剖析了德国股东派生诉讼独有的前置允许法式--派生诉讼允许法式,指出其长处和缺乏。另外,该部门还触及了其他相干的轨制,如股东论坛和“贸易断定规矩”等,旨在完全地、从多个角度剖析德国股东派生诉讼轨制。第三部门,股东派生诉讼法式。在该部门,剖析了提告状讼的刻日和再主要求企业告状,指出了好坏。在股东派生诉讼进程中,企业均有权力随时提起新的诉讼或许继受该诉讼,这是德国股东派生诉讼轨制的立异。该立异能否对德公法学系统形成冲击、其实际功效感化有多年夜等都是本部门剖析的重点,并最初得出结论。诉讼费用的承当是股东派生诉讼轨制的重点,德国划定了较为公道的诉讼费用承当轨制,有用的下降了股东派生诉讼的门坎,是值得我国自创的。德国立法者在股东派生诉讼中引入通知布告轨制,请求上市企业必需实时地通知布告股东派生诉讼的提起和终结。该部门重要剖析了通知布告轨制的详细实用、内容和后果等,为我国的自创供给更具体的材料。而且最初总结了以上对德国股东派生诉讼轨制剖析而得出的结论,承接了下文对完美我国股东派生诉讼的建议。第四部门,完美我国股东派生诉讼轨制的建议。在该部门重要论述了我国对于股东派生诉讼轨制的详细划定,剖析了其缺乏,并逐项提出了完美建议。在研究德国的股东派生诉讼轨制的基本上,还参考了其他国度和地域的股东派生诉讼轨制,以此提出加倍周全的完美建议。最初,总结得出本文结论,即下降我国股东派生诉讼轨制的门坎和划定更加公道的诉讼费用承当轨制,旨在完美我国的股东派生诉讼轨制,掩护企业和小股东权益。 Abstract: Ancient company rail system, company all right and power of operation respectively, forming the company shareholders and the board of directors of the company such as administrator of the conflict of interests; company to implement equity principle and cost most of the resolution principle, peer outside, reality will form most of the damage to most, incur the confrontation between the big shareholders and small shareholders. These two conflict is the focus of the company's external management, perfect external management structure, the crux of the problem to deal with these two conflicts. Shareholder derivative litigation system as a perfect external management structure, the protection of investors' rights and interests of the weapon was valued, was introduced into the countries of the company's judicial system. The shareholder derivative suit comes from the common law system, and is gradually adopted by the civil law countries. However, German lawmakers in the formulation of the German commercial public "constantly, but deliberately abandoned the the rail system, developed to replace the legal force of the rail of the rail system to complain. The legal force complain rail system did not have the desired effect, German lawmakers to revision in 2017, the German joint-stock law, the introduction of the shareholder derivative litigation system. The goal is to perfect the company internal management structure and enhancement of investors, especially small shareholders of the cover. In the rail system is introduced, the German lawmakers learned before legal force to complain and rail system experiences, created the United States and other countries in the world on the new growth of the shareholder derivative litigation system, consider to its specific situation and judicial system, the formulation of the ancestors of the shareholder derivative litigation system. I revised in 2017 "company law" also introduced the shareholder derivative litigation system, however the defined but because is too simple, coarse and incomplete and widely criticized. In this paper, based on the study of the German shareholder derivative action, and strive to perfect the system of shareholder derivative action in our country to make recommendations. Of course, German shareholders litigation system isn't perfect and flawless, the differences in other articles, only a broad introduction German shareholder derivative litigation, but de law circles on the shareholder derivative litigation based on the latest comments debate and analysis of detailed shareholder derivative litigation in Germany basically, brought to me. This article has taken the comparison, the historical analysis and the function analysis and so on to discuss the German shareholder derivative litigation system, to perfect our country shareholder derivative action system supply reference. Based on this, this paper is divided into the following important parts of the first division, the establishment of the German shareholder derivative litigation system. In the sector, detailed introduced the German legislation finally abandoning the cause of the shareholder derivative litigation system, legal force complain the growth of the rail system, and eventually introduced the shareholder derivative litigation system with the historical background. The second sector, the procedure allows the french. In this department, it is important to analyze the exclusive pre - permitted procedure of derivative suit in German shareholder derivative suit, which is a derivative suit, and points out its advantages and deficiency. In addition, the Department also touched on other related systems, such as the shareholders of the forum and the trade rules and so on, designed to completely, from a number of angles to analyze the German shareholder derivative litigation system. The third sector, shareholder derivative litigation. In this department, analyzes the moment and sued again asked the company to complain, that is. In the shareholder derivative litigation process, companies have the power brought at any time a new lawsuit may following the suit. This is German shareholder derivative litigation system of innovation. The innovation for and could impact on the formation of the German public law system, its actual effect effect have years of night is the Department analysis of the key, and finally come to the conclusion or not. Bear the cost of litigation is the focus of the shareholder derivative litigation system, Germany to delineate the more reasonable litigation expenses bear rail system, useful to drop the shareholder derivative litigation threshold, is worthy of our own. German legislators in the shareholder derivative litigation notice notice system, the request of the listing Corporation must be timely notice of the notice of the derivative action filed and end. The Department has an important analysis of the notice of the notice system of the details of the practical, content and consequences, for our own supply more specific materials. And at first, it summarizes the conclusions drawn from the analysis of the shareholder derivative litigation system in Germany, and takes the following suggestions on the perfection of the shareholder derivative suit in our country. Fourth Department, perfect our country shareholder derivative action system proposal. Important in the sector discusses the China on the shareholder derivative litigation system delineated in detail, analyzes the lack, item by item, and put forward the perfect suggestions. In the study of the German shareholder derivative litigation system basically, but also reference to other countries and regions of the shareholder derivative litigation system, in order to put forward more comprehensive perfect proposal. Initially, summarized the conclusion of this paper, namely the decline threshold and delimitation of our shareholder derivative litigation system more reasonable litigation expenses bear rail system, to perfect our country's shareholder derivative litigation system, protect the company and the minority shareholders rights and interests. 目录: |
