Legal analysis
Shareholder's representative litigation, also known as derivative litigation, refers to the litigation system in which the legitimate rights and interests of the company are infringed, but the company fails to exercise the right of litigation, and the shareholders who meet the statutory conditions file a lawsuit against the infringer in their own name for the benefit of the company and investigate the legal responsibility of the infringer. For shareholders, it is divided into limited liability companies or joint-stock limited liability companies. Article 149 of the Company Law of People's Republic of China (PRC) clearly stipulates that directors, supervisors and senior managers who violate laws, administrative regulations or the articles of association when performing their duties in the company shall be liable for compensation. Among them, the lawsuit against the supervisor is that the shareholders of a joint stock limited company request the board of directors or the executive director of a limited liability company without a board of directors to bring a lawsuit to the people's court. For the shareholders of a joint stock limited company, the restrictions on shareholders who individually or collectively hold more than 1% of the company's shares for more than 180 days have been implemented. Rather than imposing restrictions on supervisors.
Personal recommendation
The company law pays attention to the distinction between limited liability companies and joint stock limited companies.
legal ground
Article 149 of the Company Law of People's Republic of China (PRC) * * * Directors, supervisors and senior managers who violate laws, administrative regulations or the Articles of Association when performing their duties in the company shall be liable for compensation. Article 151 of the Company Law of People's Republic of China (PRC) If the directors and senior managers are under the circumstances specified in Article 149 of this Law, the shareholders of a limited liability company or shareholders who have held more than 1% of the shares of the company individually or in total for more than 180 consecutive days may request in writing the board of supervisors or the supervisors of a limited liability company without a board of supervisors to bring a lawsuit to the people's court; Where the supervisor is under the circumstances specified in Article 149 of this Law, the above shareholders may request the board of directors or the executive director of a limited liability company without a board of directors in writing to bring a lawsuit to the people's court.
The board of supervisors, the supervisors, the board of directors and the executive director of a limited liability company without a board of supervisors refuse to bring a lawsuit after receiving the written request from the shareholders specified in the preceding paragraph, or fail to bring a lawsuit within 30 days from the date of receiving the request, or the interests of the company will be irretrievably damaged if the lawsuit is not brought immediately in case of emergency. Shareholders specified in the preceding paragraph have the right to bring a lawsuit directly to the people's court in their own name for the benefit of the company.
If others infringe upon the legitimate rights and interests of the company and cause losses to the company, the shareholders specified in the first paragraph of this article may bring a lawsuit to the people's court in accordance with the provisions of the preceding two paragraphs.