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During the operation of a joint stock limited company, sometimes the interests of the company may be infringed by other shareholders. If the company neglects to deal with it, then in order to safeguard the interests of the company and individuals, other shareholders have the right to file a lawsuit. Shareholders' derivative litigation should follow certain principles, and those who meet the conditions can file a lawsuit in advance. So what are the conditions for the pre-procedure of shareholder derivative litigation? For this professional knowledge, let's learn together through the following.
First, what are the conditions for the pre-procedure of shareholder derivative litigation in China?
China's newly revised Company Law also attaches certain preconditions to shareholder derivative litigation. According to the provisions of China's newly revised Company Law, if directors and senior managers violate laws, administrative regulations or the Articles of Association when performing their duties, causing losses to the company, or if others infringe upon the legitimate rights and interests of the company, causing losses to the company, shareholders who have the qualification to file a derivative action plaintiff, You can request 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 in writing (if the supervisor violates laws, administrative regulations or the company's articles of association when performing his duties, causing losses to the company, the aforementioned shareholders can request the board of directors or the executive director of a limited liability company without a board of supervisors to bring a lawsuit to the people's court in writing).
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.
II. Specific provisions on the pre-procedure of shareholder derivative litigation?
China's "company law" article 152 established the shareholder derivative litigation system, in which the specific provisions on the pre-procedure of the shareholder derivative litigation system mainly include:
1. Shareholders of a limited liability company who individually or collectively hold more than 1% of the company's shares 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 if the directors or senior managers are under the circumstances specified in Article 150 of the Company Law.
2. Where the supervisor falls under the circumstances stipulated in Article 150 of the Company Law, the shareholders of a limited liability company or a joint stock limited company who individually or collectively hold more than 1% of the shares of the company for more than 180 consecutive days may request in writing 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.
3. If others infringe upon the legitimate rights and interests of the company and cause damage to the company, shareholders may request the board of directors or executive directors, the board of supervisors or supervisors to bring a lawsuit to the people's court in accordance with regulations.
4. If the board of supervisors or supervisors, the board of directors and the executive director refuse to file a lawsuit after receiving the request of shareholders, or fail to file a lawsuit within 30 days from the date of receiving the request, or the company's interests will be irretrievably damaged in an emergency, the shareholders may file a lawsuit directly in their own name.
To sum up, the introduction of shareholder derivative litigation system is beneficial for shareholders to safeguard their legitimate rights and interests, and the pre-procedure of shareholder derivative litigation must be carried out under certain conditions. Only when the company as a legal person does not deal with infringement can other shareholders bring a lawsuit in their own name. In other words, the plaintiff must ask the company to take measures before suing. If the request is not answered, then the pre-litigation procedure can be initiated.
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