Trouble hearing company litigation cases, current and Its Countermeasures
                        2009-7-15 Authors: the Shandong Provincial Higher People's court two people court                  

   In recent years, with the development of China's state-owned enterprise reform and the reform of the economic system, various types of companies such as bamboo shoots after a spring rain like emerge. The trading company internal activities, at the same time, the illegal behavior, in addition to many companies in the establishment, operation and has a large number of irregularities, leading to the company litigation disputes increase day by day, and continue to reflect to the trial activities, has become an important part of civil and commercial trial work of the people's court. From the Shandong province of view, since 2002, the number of court cases every year company litigation dispute cases accounted for the proportion of civil and commercial cases respectively: 0.1%, 0.08%, 0.17%, 0.21%, 0.26%, although the total is less, but the overall showed a rising trend year by year. At the same time, because the type of company litigation cases of the legal relationship between diverse, complex, diversified interest groups, and the company law is too principle, the people's court often in a difficult position in the trial litigation cases, different practices, standards of law enforcement into chaos, the focus and difficulty in civil and commercial trial work, need to solve.
   
  　A, practical difficulties: in the interests of a wide range of choices
   
  　(a) the judicial intervention point is difficult to determine
   
  　Company law belongs to private law, should follow the basic principles of the autonomy of private law, the people's court for legal relations within the company in May on the formation of normal business activity intervention. The company autonomy and autonomy of shareholders belongs to category of affairs, the people's court not for others. However, for the range of company autonomy and judicial intervention, there is little study theory, in the trial practice for those disputes can be resolved through legal channels not defined. Such as, companies are not in accordance with the provisions of articles to convene a meeting of shareholders, the shareholders can request the people's court ordered the company a call? Company shareholders will not make long-term profit distribution resolutions, shareholders can request the people's court for compulsory distribution of profits? Between the holding staff and staff will dispute whether as a civil and commercial disputes between equal entities. The controversial range similar disputes whether to belong to the jurisdiction of the courts, to master the standard is inconsistent. For example, the case has many shareholders forced distribution profit disputes, some courts to did not assign the resolutions of the board of shareholders is inadmissible or does not support the plaintiff's claim; some court ordered the company to shareholders will be held within a certain period of time on the profit distribution of voting; and the court according to the shareholding company profit distribution and the plaintiff shareholders directly ordered the company to perform the relevant obligations.
   
  　(two) the admissibility of the case is difficult to operate
   
  　At present, the people's court in the acceptance of corporate litigation cases, generally in the following aspects is difficult to decide.
   
  　One is difficult to determine the. "The Supreme Court in civil cases (for Trial Implementation)" 18 kinds of company litigation dispute to determine the case is too rough, and can not cover all types of the company disputes. Especially the creation of the new "company law" of the shareholder representative litigation, litigation, stock repurchase of judicial dissolution of a corporation and other new types of litigation, at present there is no judicial interpretation to make uniform provisions on the case. The practice of many companies dispute is not easy to determine the. Many courts often will not cause the corresponding case referred to as disputes, the interests of shareholders general shareholders rights disputes or other shareholder rights disputes, and even some courts will part company litigation dispute as tort, sale, processing case, which is not conducive to the registration statistics and judicial process management, also have a negative impact on how to grasp the case property right.
   
  　Two is difficult to determine the jurisdiction. Company litigation dispute cases around the company expansion, but because the subject of litigation is more, the choice of jurisdiction right is relatively large, optional sex is big, sometimes leading to the trial court have no connection with actual cases, which is not conducive to the trial of cases. In addition, many cases have not property, if simply according to the "general principles of Civil Procedure Law" determination, will cause the most difficult cases are concentrated to the grass-roots court, not commensurate with the allocation of judicial resources.
   
  　Three is the litigation costs to. First of all, in practice for some company litigation dispute case is not to determine the property cases, such as the shareholder representative litigation, judicial dissolution of the company, apply to the court for the liquidation group designated cases, in the lawsuit fee is not a. If the court on judicial dissolution of a company case as non property cases fees, some courts in accordance with the amount of registered capital of the company to calculate the fees for accepting the case. Secondly, in some cases although not disputed property subject, but try difficulty generally larger, such as shareholder qualification disputes, litigation right of minority shareholders, the cost of these cases on the judicial cost is often very large, far from the general lending contract cases and cases and, in strict accordance with the non property cases to collect 50 yuan litigation fees and disproportionate cost of justice. In addition, some cases such as the distribution of surplus property disputes, litigation parties only require the allocation of surplus property, but not clear their amount should be divided up, even apply to audit the remaining property at the same time a lawsuit, which made it difficult for litigation fees received in advance.
   
  　(three) procedure to apply
   
  　The current civil procedure is mainly the system design made for tort, contract and other traditional people, civil and commercial disputes, the company litigation dispute such a model case of how to apply there are many blanks. As many cases of litigation subject is difficult to determine, as the shareholders' meeting, the resolutions of the board of directors is invalid or revocation proceedings the defendant should be still vote for the resolution of the shareholders or directors, status in litigation of shareholders representative litigation in the plaintiff or the third person, the application of judicial dissolution of company by shareholders or company as a defendant. In addition, the shareholder qualification, determine the action of the main stock transfer disputes also exist certain difficulties. At the same time some cases the lack of hearing procedure. New "company law" the provisions of article 184th apply to a people's court to designate a liquidation group case, obviously does not belong to the common procedure of the category, but at present no special corresponding procedure can be used. In addition, the judicial dissolution of the company should be according to the general procedure and special procedure, litigation right should be based on the judgment or ruling made to form because there are no provisions are controversial issues plagued, belongs to the current judicial practice.
   
  　(four) difficult to straighten out the legal relationship
   
  　Company litigation disputes often contain multiple legal relationship, both the relationship between shareholders and the shareholders of the company, the shareholders and the company, the directors and senior executives, and the relationship between the outside of the company, shareholders, creditors and the company intermediaries; both entities involved parties to assume responsibility, and relates to the identification of corporate voting procedures the question of whether legitimate, complicated legal relationship. But in practice, a number of parties often is in 2 people above, and put forward a claim, both has the action of confirmation, and the benefit and change of action; both the claim and counterclaim. For example, in one case, the plaintiff first apply for consulting company books, then suggests that the distribution of profits; and the defendant counterclaim request that the plaintiff does not have the qualification of shareholder. A number of legal relations are intertwined, and in some cases litigation request is not very clear, brought no small difficulty to the people's court case.
   
  　(five) law difficult to invoke
   
  　Constrained by historical conditions, in 1994 the "company law" mainly as a company organization law exists, its administrative management and guide the strong color, justice is obviously insufficient. The new "company law" although greatly enhances the action design of legal norms, but since our country is long-term "coarse" legislative policy effect. The relevant provisions are still too principle and simple, for many practical situations not covered. More crucial is, in China's current legislative conditions, the judicial interpretation of the Supreme Court is often strong operational norms in the trial of a case, most of the current civil and commercial disputes are also dependent on judicial interpretation and smooth processing, but about the company litigation disputes judicial interpretation has the vacancy. The people's court in the case when the lawless phenomenon, the base is obviously insufficient.
   
  　(six) the main content is difficult to express
   
  　Compared with the traditional people, mainly civil and commercial disputes for the payment of property complaints, a content company litigation disputes relative diversification, there are many relates to behavior, including the provision of accounting data for reference as to stop violations of the right to know and not as, at the time of writing this kind of case text of the judgment, the contents of the judgment without precedent, not only to reasonably determine the obligations of the parties, but also consider the enforcement of judgment, how to make scientific, proper and unambiguous representation is very difficult. For example, for the support of shareholders the right to know the text of the judgment, it is necessary to consider the enforcement of judgment, but also take into account does not impair the normal operations of the company and the interests expression, difficulty.
   
  　(seven) cases to mediation
   
  　Because of the company's litigation cases, complex legal relationship, the number of disputes, conflicts of interest and the opposition cases often involves three parties and even lead to square, between the parties is difficult to form a reconciliation agreement. Moreover, the parties to the case between economic status difference, conflict of interest is more intense, often involving capital shareholder company, advance and retreat, a major economic and social worker's employment etc.. Because of this, the cases are often difficult to mediate, general judgments.
   
  　(eight) to interface with the administrative power
   
  　Company litigation cases involving the administration of industry and commerce, as the starting point of the work and the law, and the administrative department for Industry and commerce administrative regulations and operating rules and company law has some contradictions, often leads to the court verdict exist some conflicts and administrative management system, the people's court judgment cannot be administrative Management Department of industry and Commerce of recognition and assistance. For example, the Excel Inc management behavior of a wide range of the people's court shall not invalidate the contract, but the industry and commerce registration is still in the statutory registration system to strengthen business scope; although the laws and regulations have been clearly defined the registered capital, equity transfer must be approved by the industrial and commercial registration, but for various reasons, the phenomenon of false registration, change of registration of escape occurs, the industry and commerce administration cannot contain similar violations of the provisions of the company law; company without liquidation shall be cancelled, and the company in practice for 2 consecutive years did not participate in the annual by the administrative department for industry and commerce registration of the phenomenon is very common, which led to the people's court in the liquidation responsibility difficulties etc.. The current practice of the more prominent contradiction is, according to the "Regulations" the administration of company registration, change of registration must be applied for by the legal representative of the company. In practice, the parties concerned to the people's court judgment documents require changes in industrial and commercial registration, the administrative department of industry and Commerce tend to have no legal basis shall not handle.
   
  　(nine) the results are difficult to execute
   
  　In general, the people commercial cases, such as the litigation of payment, as long as the person to be enforced is its ability to perform, is usually not an issue. The company disputes, such as the people's court to the shareholders' meeting, board of directors confirmed invalid or revoked, if the decision has been the actual performance, the recovery is very difficult, but also relates to the interests of the third party. In addition, in some cases, object of performance for the behavior, such as the litigation right, if the obligor refuses to perform, how to enforce the poor operation. And as the people's court ordered the company to change the industrial and commercial registration obligations there are difficulties in implementation. According to understand from the province industry and Commerce Department, this situation even if the people's Court issued a notice for assistance in execution, the administrative department for Industry and Commerce will not be changed directly to industrial and commercial registration, and just ordered the company to apply, and if the company refuses to apply for, without any solution.
   
  　(ten) the trial experience less, it is difficult to adapt to the requirements of the trial
   
  　The trial experience is essential for the correct number of cases, the judicial interpretation of the Supreme Court are often dependent on the trial practice of exploration and production. But for the corporate litigation dispute case, because the case of absolute quantity is less, and variety, with any one type of case in some areas may only occur together for many years, the people's court and the judicial personnel experience is obviously insufficient, enthusiasm is not high, the company litigation disputes trials do not pay enough attention to the long-term investigation, request can not be to adapt to this kind of case.
   
  　Two, the Macro Thinking: grasp the basic principles of the trial cases
   
  　(a) respect the autonomy principle
   
  　One of the most important changes in the new "company law" is: according to the principle of private law, the mandatory norms in company law amended as arbitrary norms, reduce interfere with law, strengthening the legal effect of the company's articles of association and autonomous. In this regard, attention should be paid to grasp the three aspects of practice.
   
  　The effectiveness of the 1 should not be denied by the company's articles of association. In general, the articles of association of the company includes absolutely necessary items, relative necessary items and arbitrary items. "Company law" article twenty-fifth, article eighty-fourth prescribes the limited liability company and Limited by Share Ltd, the absolute items recorded in the articles of association of the company is limited to the internal contract of company law. But if the matter is deficient or defective, can in principle by the parties by agreement to supplement or remedy in accordance with the relevant provisions of the articles of association of the company, and do not necessarily lead to invalid or dissolution of the company. Easily deny the articles of association of the company, not only would complicate the corporate behavior has been conducted, and the severity of the shareholder responsibility, but also detrimental to the interests of the creditors, affecting social and economic stability. 2 note arbitrary provisions of company law and mandatory regulations distinguish between. The new "company law" has many internal matters of arbitrary provisions, such as voting, dividend, investment valuation, general meeting of shareholders and the board of directors of the division of rights, foreign investment and guarantee. For any of the articles of association of the company shall have the right to change the principle, the people's court shall not interfere. 3 respect business judgment and business behavior, the normal principle. Company as a commercial entity, judgment and operation of its commercial behavior is mainly affected by the market leverage to control and regulation. As long as no harm to the transaction security, social stability, the people's court shall respect the company based on commercial considerations independent to determine their own affairs, respect their meaning freedom and civil liberty. Only for those involved to sound organization, transaction security, such as controlling shareholders, directors and senior management personnel of the autonomy of private law and lead to the abuse of company legal relationship of rights and legitimate interests damage case, people's court to intervene.
   
  　(two) the principle of internal relief exhausted company
   
  　Company litigation cases are mostly related to the company's growth and development, and limited or the shares of both companies, is a collection of unspecific majority, which affect the company's litigation cases are generally larger, in trying cases, the people's court shall pay attention to exploit the internal way to solve disputes, maintaining stability and harmony within the company.
   
  　1 attention to the provisions of the relevant procedures of the. The new "company law" are designed pre procedure in many litigation system, require internal relief exhausted after the company can be resolved through legal channels, this should pay attention to in the judicial practice. For example. Mention of the shareholder representative litigation, shareholder must first request of corporate governance mechanism to the implementation of misconduct against the interests of the company's claim compensation, by administration rejected or company at the request of negative and not as a case, the people's court shall be accepted. And as the judicial dissolution of a corporation, only the company deadlock through other channels do not solve, people's court to order the dissolution of the company. The 2 should pay attention to the work of mediation cases. If the company is a big family, company litigation dispute is a dispute within the family, the principle as the trial of divorce cases to mediation, litigation cases for company should pay attention to the mediation work the same. This can be the need to respect the company for internal operations of their own affairs, also can alleviate the contradiction between the shareholders, between the shareholders and the company, benefit the development of the company. Need to pay attention to is, ordinary commercial cases mediation generally does not involve the other person of party, company litigation dispute case is different, in the mediation process mediation or conciliation results parties may damage other interests, so the people's court for the mediation or settlement is necessary to review, careful mediation.
   
  　(three) differentiated principle
   
  　Company litigation dispute legal relationship from nature can be divided into two categories: internal and external relationships. Between shareholders, between shareholders and company and the shareholders, the company and the company management personnel disputes belongs to the internal relationship between, between companies, shareholders and third people and third people dispute belongs to external relations. To pay attention to the distinction between internal and external relations of the trial proceedings disputes. Concrete should grasp the following two points: first, in the case handling procedures, should adhere to the "first after the internal" principle, namely, to deal with external relations, and then deal with the internal relations. For example, in part because the promoters of fault which led to the failure of company establishment, the promoters shall jointly set up the first bearing joint and several liability towards the third party, and then the promoter at fault recovery. The two is in the treatment of the internal relationship, should adhere to the rules of civil law applicable to priority, the principle of fairness and justice as the criterion. In dealing with external relations, the priority should be applicable law rules, to focus on the protection of transaction safety and order circulation, promote efficiency and benefit.
   
  　(four) maintain the principle of balance of interests of the parties
   
  　Company litigation disputes involve shareholders, company, managers and creditors, the interests of the main parties. In the trial of a case, in case of legal gaps or blind spot problem, should be the discretion standard to measure of interest mechanism, pay attention to keep and maintain the balance of interests of the parties. When the interests of the parties can not take. Should choose according to the following principles: the conflict of the interests of shareholders and creditors. Give priority to the protection of the interests of creditors; in the event of a conflict between the interests of shareholders and the interests of the company, give priority to the protection of the interests of the shareholders; when there is a conflict between the interests of shareholders, give priority to the protection of the interests of small shareholders.
   
  　(five) maintain community stability principle
   
  　Legal relation of commercial subject and maintain the stability of surrounding commercial subject occurred, is a fundamental value orientation including the company law, the legislation of association. Company as a social organization, the stakeholders, complex legal relations, community relations once unstable, extremely easy to cause a lot of social problems. The trial work, to deal with litigation dispute case, should pay attention to as much as possible so that the company was established, the company has established effective, not easily deny that the company has established the behavior, not easily deny the company's legal personality, do not make the shareholder direct responsibility for corporate debt easily, not easy judgment for dissolution of the company, pay attention to keep the internal legal relationship, the relative stability.
   
  　(six) the appearance theory adhere to the principle of commercial law
   
  　Company law is a typical commercial law, corporate litigation dispute is typical of civil and commercial disputes. Therefore in the trial of the case should be paid attention to when applicable law rules, such as transaction security, convenient principle, principle of public summons, the appearance of principle etc.. The new "company law" the thirty-third regulation, company changes its registered items, it shall apply for modification of registration, no registration with the registration or change, may not be against the third person. Simply reflect the provisions to industrial and commercial registration credibility is the appearance of. The company shall be the basic condition of the shareholders, such as capital by the legal form to be open, so that the relative transaction known, relative person does not assume due to company appearance not real transaction cost and risk. For example, after the share transfer did not change the industrial and commercial registration, transfer and equity will be re action, the people's court shall not recognize disciplinary actions invalid.
   
  　Three, the micro reflection: Exploration of some major companies for the specific legal issues
   
  　(a) the establishment of civil subject and the litigation subject qualification of the company's problems
   
  　The process of establishment of the company, the sponsors to "company" or "corporate group" in the name of civil behavior existed and constant disputes, how to identify the legal status of establishing a company or group is prerequisite for the correct solution in such cases. In this regard, the legislation is not specified, there are two kinds of views in theory: a view of the establishing company is a partnership between the promoters, no independent personality, does not have the civil subject and the litigation subject qualification; another view was that, in the establishment of the company property should belong to the illegal person group (organization). [1] investigates the attitude of our judicial practice, are not consistent. Such as the Beijing Municipal Higher People's court "on hearing the company litigation dispute cases a number of issues guidance" in that: "limited liability company no preparatory group in the establishment of the independent property, not independently bear civil liability, therefore does not have the qualification of subject of action." While the Zhejiang Provincial Higher People's court "about some difficult issues in the application of company law in understanding" is considered in the establishment of the company to apply for name pre-approval after become legally recognised organizations.
   
  　We believe that, at present there are two admit our legal non natural civil subject: legal and non legal person organization. First of all, in the establishment of the company is the predecessor of the company after the establishment and rudiment. In before the establishment of the company, company legal personality has not yet been created, so in the establishment of the company does not belong to the legal person. Secondly, in accordance with the relevant legal provisions of our country, non legal person organization or group, must apply for the registration and obtain a business license, the status of civil subject to gain legal recognition. But in our country, the company set up stage can apply for name pre-approval registration, registration does not exist for the main problems, and according to the "Regulations" the administration of company registration shall not be approved in advance, the name registered in business activities, identified in the establishment of the company belongs to the illegal groups lack of legal basis. Therefore, should not be determination in judicial practice in the establishment of the company have the civil subject and the litigation subject qualification. The parties to the establishment of the company or the company preparatory group sued or respond to a lawsuit, the people's court shall not accept or request the change the subject. That is, although the establishment of the company does not have the qualifications of civil subject, but with the establishment of civil acts in the name of a company engaged in the maintenance transaction security and stability, from the spirit of contract law, the people's court shall not assert invalidity of civil behavior, but should determine the actual liability of human behavior.
   
  　(two) the problem of defective capital contribution in the dispute
   
  　1 shareholders of a limited liability company cash is false, the establishment of the company and other shareholders should bear the joint and several liability. The new "company law" the thirty-first regulation, the shareholders of limited liability company funded non monetary property false. The other shareholders in the establishment of the company shall bear joint and several liability for payment, cash false cases not provided for, resulting in the controversial practice. We think, the real problem belongs to the loopholes in legislation, in the trial practice shall be construed accordingly and supplements. First of all, the other shareholders to back a false capital contribution and responsibility belongs to the full liability company act on the principle of capital. In theory, this kind of responsibility never to contribution form distinct when applicable. Secondly, according to the new "company law" provisions of article ninety-fourth, joint-stock limited liability company sponsors a false capital contribution. Whether it is cash or non monetary property investment other false, a per capita tax liability shall be jointly and severally. Obviously, there is no need to discriminate between different forms for the company. Therefore, the shareholder of the limited liability company cash false case, judicial practice should be in accordance with the provisions of the Limited by Share Ltd. The analogy to explain the principle that the other shareholders, the establishment of the company shall bear joint and several liability shall also pay.
   
  　The 2 flaw shareholder liability to creditors of the company to undertake the form. Company creditor may request the defective capital contribution of shareholders in the range of defective capital contribution directly liable for the debts of the business, has been formed in the theory and practice of the consensus. But the liability shall be joint and several liability or liability has been controversial. At present, most of our province treatment court is ordered in the defective capital contribution of shareholders shall assume joint and several liability for the debts of the company within the scope, but also any shareholders only in the company can not pay off debts to creditors bear the responsibility for compensation (i.e. the responsibility of compensation). We think, determine the form of liability. The premise is to correctly define the nature of liability. The company capital is the general guarantee for the debts of the company, shareholders defective capital contribution leads to inadequate capital, is against the interests of creditors of the company act, therefore the defective capital contribution of shareholders liability to creditors of the company belongs to tort liability in nature, the specific application system "infringement of the third party system". [2] shall bear tort liability shall be to the detriment of the elements. In the company's assets sufficient to pay off debts, although shareholders defective capital contribution, but not to the interests of the creditors of the actual damage was caused, and only when the company's assets are insufficient to pay off debts, defective capital contribution behavior is the result of damage to the interests of creditors. Therefore, from the perspective of tort liability, only the company can not pay off debts, it shall be borne by the shareholders in the defective capital contribution range shall bear the liability for the debts of the company. Visible, the nature of joint and several liability and tort liability does not match, the responsibility of compensation in accordance with the basic law, which can be adopted by.
   
  　The 3 shareholders of the obligation of capital contribution should pay their to the limitation proceedings. In the case of shareholder disputes, the limitation of action for shareholders to defense refused to take up the duty of contribution situation occurs from time to time. In this regard, the law does not make provisions, the Supreme Court has no clear idea or judicial interpretation, affirmation, negation and eclecticism three is existed in practice. Definitely say that the defective capital contribution of Shareholders Civil Liability whether qualitative liability for breach of contract or tort liability, and the company are a debtor creditor relationship, according to "general principles of civil law", should be applied to the object of limitation of action. [3] negation believes that defective shareholders back funding obligations should not be subject to the prescription of action. The compromise that the company asked to pay the capital contribution is not applicable statute of limitations, but the company creditors to claim the rights of shareholders defective capital contribution shall be restricted, the limitation of action.
   
  　Our province has been taken in the trial practice of negation, the main reason is to maintain the principle of capital maintenance, but other provinces have also taken positive speaker. For example, the Beijing Municipal Higher People's court "guidance" on Several Issues concerning the trial of company litigation dispute case sixteenth is that shareholders do not perform the obligation of capital contribution is the company's infringement, should apply the litigation validity. We think that, from a legal perspective, the defective capital contribution of shareholders is the company's infringement, scope of application of the resulting debt clearly belongs to the limitation of action, denied that the basic principles do not accord with the system of limitation of action and compromise. And check the foreign legislation, are so many provisions. As the second paragraph Germany limited liability company act ninth provisions of the right to request the company aging for 5 years, since the company registration for business registration time. However, in China's current legislation system, if the shareholder investment obligation suffering in the prescription of action will produce tremendous negative effect. First of all, from the social reality, investment disputes occur mostly in company was established after a number of years, but few companies or creditors of the company, shareholders claim to flaws in the prosecution of cases, if the shareholder investment obligation suffering in the prescription of action will lead to a large number of capital contribution obligations without performance, as the company building the cornerstone of principle of capital maintenance will destruction, is not conducive to the stability of the market economy order and healthy development. Secondly, from the point of view of foreign legislation, the limitation of action at the same time the duty of capital contribution of shareholders, general provisions of relevant remedial measures, such as the expulsion system, but the current "in the company law of China" and the relevant judicial interpretations lack of relevant supporting systems. If the shareholder investment obligation with the limitation of action, will lead to large without shareholders exist in practice, and the company has no effective measures to remedy. Based on the above consideration, before our company legislation is not perfect and clearly defined, we tend to adopt the negative.
   
  　(three) the relevant problems in the identification of shareholder qualification of limited liability company
   
  　The recognition of shareholder qualifications in limited liability company is currently the company litigation dispute cases in the most difficult problem, investigate its reason, in addition to the company law of the lack of clear definition of company law, works are inconsistent, the company in the establishment and operation of non-standard operation are also important factors. [4] according to the design of our country's legislation, obtain the shareholder qualification should experience is as follows: the articles of association of the company, has signed investment, investment certificates, records in the register of shareholders and the industrial and commercial registration, the actual exercise of shareholders rights. But the company limited liability in reality the establishment and operation of non-standard situation exists, the above link is difficult to be consistent from beginning to end the coherent down, as though by the industrial and commercial registration records for shareholders, but actually not funded; many companies don't prepare a register of shareholders; the share transfer has been for many years, the company did not modify the articles of association of the company and the modification of registration. Shareholder qualification, and disputes arising from the non normal state. To correct the trial of the case, it is very important to decide a shareholder of the qualification of general principles or standards. At present, the practice of the representative of the views and practices are, relevant factors will affect the qualification of shareholder's form characteristic and the essential characteristics. The characteristic of form: the articles of association of the company, shareholders and the industrial and commercial registration records. The essential characteristics: the articles of association of the company, signed for investment, made the capital contribution certificate, the actual exercise of shareholder rights. When the shareholders, the shareholders and the company internal shareholder qualification dispute arises, in nature, form features as comprehensive as. When the shareholders and external third people on the qualification of shareholder dispute, to form features, supplemented by the main substantive characteristics identification. [5] it should be said, this classification standard in line with the new "company law" the provisions of article thirty-third of the "differentiated" spirit, but the operating standard multivariate, was still too principle, practice should be mastered, it is necessary to further refinement. We think, the establishment of the company is all sponsors agree results, shareholder qualification should in principle be generated by the articles of association of the company recognition means that as the fundamental elements. So the signing the articles of association of the company shall be principled criteria to affirm the shareholder qualification. At the same time, according to the appearance of principle of commercial law, the shareholder qualification without business registration, may not be against the third person.
   
  　(four) the relevant procedures of shareholder representative lawsuit
   
  　Shareholder representative litigation is a system of the new "company law" has just been established, but it is only in principle that such a form of action, the specific operation of the system in practice, especially the procedure remains to be the judicial interpretation should be clear. The following is some procedure problems and suggestions.
   
  　1 jurisdiction. On the shareholder representative litigation should be subject to the exclusive jurisdiction, has been controversial. Most of view, should learn from Japanese law jurisdiction provisions for the shareholder representative litigation, confirmed that the company is located in the exclusive jurisdiction. But also the scholar thinks the exclusive jurisdiction of no significance. This [6], we recommend that, considering the whole system and the social reality of China's "civil law", the jurisdiction should be unified shareholder representative litigation that the company is located in the exclusive jurisdiction, and should distinguish between two kinds of conditions are treated. (1) when the shareholders as the controlling shareholder of the company, the directors, supervisors, senior management personnel and other violations of the interests of the company and the internal personnel filed a lawsuit on behalf of the, at this time due to disputes within the company, and the facts of the case is often related to the time of establishment of the company, the shareholders agreement between charter and directors, managers behavior review, on the evidence is also more in the company, by its domicile to exclusive jurisdiction is appropriate. (2) when the shareholders because of the company's external personnel against the interests of the company and the shareholder representative litigation, because the case is essentially to solve the legal relationship between the company and the third person outside the company as substantial, the plaintiff shall, to which the courts, the shareholders should also to which the courts. Therefore, the case shall be in accordance with the "Civil Procedure Law" general jurisdiction principle to determine the appropriate jurisdiction. Specifically, "Civil Procedure Law" provisions of the grade jurisdiction, jurisdiction, transfer and designation of jurisdiction principle in this case should be completely applicable. At this time if the force shall be stipulated by the company's domicile is not only against the "Civil Procedure Law" the basic jurisdiction principle, but also damage the interests of the third person outside the jurisdiction. Not stop as well as between different region jurisdiction to frequent disputes in the current judicial environment intentionally evade jurisdiction phenomenon is serious, local protectionism, the implementation of exclusive jurisdiction of absolute on the shareholder representative litigation, may also lead to the shareholder representative litigation means malicious evasion cases under the jurisdiction of the phenomenon, the shareholder representative litigation become parties to choose arbitrarily or change the jurisdiction tool.
   
  　The litigation status of the 2 company. There are different views in practice, that the company should do, but also that should make the defendant, and that the company should be the third party without independent claim, even with a view, not to participate in the proceedings. With reference to the foreign legislation, the provisions of different countries are not the same. As in the British and American legislation on the company in the position of defendant. Federal rules of twenty-third in American is clearly stipulates, shareholders representative litigation must participate in the proceedings as a defendant. But in the commercial law of Japan, in the lawsuit is not the plaintiff, the defendant is not, similar to the action of special participants. [7] we think, from the current "Civil Procedure Law" framework analysis, first, the shareholder representative litigation, in fact the plaintiff shareholders is the company's right of action, and once the plaintiff, litigation interests must be attributable to the company, so the company should obviously as the main proceedings in the action, the company is not required to participate in the proceedings point of view is not desirable. Second, because the premise of the shareholder representative litigation is the company refused to the name of the company filed a lawsuit, the company listed in violation of the principle of autonomy "Civil Procedure Law" for the plaintiff. Third, according to the provisions of China's "civil law", the defendant must be told that has a direct interest in the case of the original please objects, while in the shareholder representative litigation, if the company as defendants will face the company although the defendant was not the original tell please paradox of interest and ownership of the company of the object and the plaintiff after winning the. Fourth, from the analysis of the shareholder representative litigation, company is not a complete sense of the parties, the local position only if the parties. The company may raise objections to the plaintiff's claim or action, request the court to review, but can't put forward new claims, cannot request withdrawal or settlement, there is no right of appeal, at the same time the company itself must be neutral, not inclined to any party. From the analysis of the above characteristics, the position of the company is similar to the proceedings for right of subrogation is the people's position, should belong to the third party without independent claim.
   
  　Take 3 of litigation costs. The viewpoint thinks, shareholders filed a lawsuit for the interests of the company and shareholders, once lost, the litigation costs shall be borne by the company, so as to achieve the purpose of encouraging the shareholder representative litigation. We accept the following point of view, the system design of shareholder's representative action should be both to encourage the shareholders of the company and to safeguard their rights, but also to avoid the malicious lawsuit abuse, in order to maintain the normal litigation order, so as to realize the protection of the company, the interests of small shareholders and prevent the abuse of litigation of two goals of balance. [8] although the shareholder representative litigation has some particularity in the litigation subject and object and so on, but it still belongs to the common civil litigation, basic does not alter the character of civil litigation, there should be provision applicable to general civil litigation, including litigation expenses bear. If the shareholders at losing situation need not bear any risk, the lawsuit abuse is bound to spread. Of course, in order to encourage litigation on behalf of the target, we propose in the judicial interpretation of this kind of case making relatively low litigation fees, in order to prevent the shareholders bear the heavy burden of litigation costs. This legislation experience from the Japanese, the shareholder representative litigation is defined as non property cases, fixed fee of 8200 yen (equivalent to 600 RMB) costs. [9]
   
  　Shareholders in the prevailing circumstances, although the case acceptance fee shall be borne by the losing defendant, but the shareholder litigation expenses of transportation, traveling and attorney's fees, judicial practice is not in the scope of the defendant. We suggest, encourage the shareholder representative litigation from the angle of cost compensation system should be established, the shareholders in the judicial interpretation, the shareholders win, win to company interests based on the reason, as beneficiaries, the necessary compensation for losses to shareholders.
   
  　(five) handle the shareholders profit distribution disputes
   
  　At present, the practice is controversial is whether shareholders could profit from the distribution of profits to the company exists for the company? We think, according to the provisions of the new "company law" article thirty-eighth, Article 100, profit distribution company should formulate plans for profit distribution by the board of directors, and then by the shareholders' meeting for deliberation and decision. Thus it can be seen in the company profit distribution situation, whether the company profit, how much profit should belong to shareholders will remit. According to the principle of respect for autonomy of company, whether the company profits, not only depends on the company is distributable profits, but also depends on the free judgment of shareholders in shareholders or the general meeting of shareholders. This judge is often affected by the shareholder wealth maximization and the recent long-term wealth maximization two distribution concept, its itself does not have legal and illegal not. In addition, the distribution of profits is also subject to the company's category (listing Corporation and non-listed company), and rate of market status and development prospect at home and abroad, the company changes and other factors. For example, as a result of any listing Corporation shares fluctuations of interest rates, the signal will be passed one of the companies into trouble to shareholders or other vast potential investors. Therefore, many listing Corporation pursues the dividend rate is relatively stable dividend policy, if not for profit status of the company's long-term support such stable dividend policy also is so, the company is hoping its operation will take a turn for the better in the future. Many of the company's shareholders may prefer to pay the rent, interest, and other forms of share dividends, or simply do not distribute any form of dividend, for the company assets accumulated to a certain extent, will sell at a profit. [10] visible, company profit distribution amount, in principle belongs to company autonomy and autonomy of shareholders range, shareholders will be no profit distribution resolutions, shareholders profit distribution, the people's court shall not support. Of course, this does not mean that the profit allocation behavior completely outside the scope of judicial review, the protection of the interests of shareholders can take other measures. For example, according to the provisions of the new "company law" article twenty-second, filed a resolution invalid or rescinded action to the people's court, can also according to the provisions of the new "company law" article seventy-fifth of the request of the company in accordance with the acquisition of its equity and reasonable price.
   
  　(six) the company dissolution, liquidation of the relevant problems
   
  　1 issues of judicial dissolution of the company and other shareholders in the case of litigation status. Judicial dissolution of corporation by shareholders should take the company as a defendant, or contentious shareholders for the controversial. The viewpoint thinks, should take the controversial shareholder for the company is not involved in the dispute, and other third shareholders listed third people. The reasons are as follows: the dissolution of the company is actually the rescission of the contract relationship among shareholders, dispute the two sides should for the shareholders, so the only shareholder. At the same time, because the company is shareholder disputes to dissolve the company, but the decision to all shareholders of the company are binding, therefore, the company and other shareholders not to intervene in the conflict should be the third party without independent claim in litigation. It happened in the trial practice of case study, the shareholders lodge a lawsuit or dissolution, the contentious shareholders as the defendant, the main reason is the shareholders by manipulating the company violated their rights. We believe that, although the conflict of interest between the judicial dissolution of a corporation belongs to the suing shareholders and other shareholders, other shareholders infringement behavior in the name of the company to make, but if the prosecution shareholders win, directly bear the consequences of the company, but the company is not a defendant, does not enjoy the right of defense, which the company is not fair. Therefore, the defendant should be firm, not shareholders. In this regard, the civil law countries also adopted this legislation, for example, "the German limited liability company law" sixty-first paragraph second: dissolution lawsuit should be based on the company as a defendant. [11] of course, because the judicial dissolution of a corporation will produce legal effects to all shareholders of the company, but also to combat enhancement action, other shareholders of the company shall participate in the proceedings as the third party.
   
  　2 Shareholders of the company may apply to the people's court organization special liquidation problem. The new "company law" provisions of article 184th of the liquidation obligor refuses to perform the obligations of liquidation, the company creditors may apply to a people's court appointed a liquidation group, the special liquidation system. Practice question is, shareholders have no right to apply for special liquidation. We think, the shareholders and the creditors, and the company liquidation is relevant interested parties, but in practice a shareholders liquidation, and other shareholders do not cooperate situation exists, from maintenance of nature of legal fairness, should be recognized, shareholder has the special liquidation petition right.
   
  　3 creditors can require the company to repay debt and request any liquidation obligations incurred obligations of liquidation problem. Often appears in practice, for company creditors in debt at the same time, often for any liquidation obligations incurred obligations of liquidation, the people's court to the request also more support. We think, this practice should be corrected. First of all, when the liquidation obligor refuses to perform the obligations of liquidation, the creditor's legal remedy is based on the new "company law" article 184th start the special liquidation procedure, rather than through the normal procedure to resolve. Secondly, for the special liquidation procedure principle shall be borne by the company's domicile court has exclusive jurisdiction and to supervise the liquidation activity, according to the practice, if different courts have to take the duty of liquidation decision, will lead to much home court for the same company liquidation.
   
  　Four, suggestions and Countermeasures
   
  　(a) at the legislative level
   
  　1 to revise and improve the "Regulations on the administration of company registration" (hereinafter referred to as "Regulations"). Now the implementation of the "Regulations" promulgated in order to revise is hasty to deal with the new "company law", in real life adaptation ability is poor, there is deviation and deficiency in many institutions, should be further improved. One is the perfect type of industry and commerce registration cancellation. "Regulations" only stipulated the shareholders' meeting, the resolutions of the board of directors is invalid or revoked, shall revoke the relevant business registration. But in practice need to revoke the registration situation is not limited to, for example, equity transfer contract by the people's court shall confirm the invalid, according to the contract of the industrial and commercial registration shall also be revoked. Two is to make clear the company refused to apply for change of registration responsibility. The industrial and commercial registration is a modification of the administrative department for Industry and commerce management responsibilities, but also regulate the necessary means of transaction safety and order operation, maintenance, when change related issues of the company, and the company refuses or fails to apply for registration of change, will certainly cause social confusion, we should make the corresponding provisions of punishment, to the company or the corresponding responsibility people consciously to fulfill legal obligations. Three is the people's court shall clear judgment documents for industrial and commercial registration change. The current "Regulations" provisions, matters for industrial and commercial registration in the people's court act caused the change, must also apply for the company. But this is the case, because the contradiction is sharp, the company refused to apply more generally, from the point of view of the effectiveness of maintenance of judicial judgment, the parties concerned should be allowed to directly apply for registration of change. In this regard, the real estate sector housing change from practice for registration.
   
  　2 to speed up the formulation of company law judicial interpretation. The new "company law" in making innovation and guidelines for many system at the same time, also to the judicial interpretation work enough to stay in the room and room. If the shareholder representative litigation, judicial dissolution of the company, litigation right, share repurchase lawsuits, disregard of corporate personality, related party transactions, corporate social responsibility, to the judicial interpretation to be refined. In view of more difficult legal problems, we suggest that the Supreme Court can tiered judicial explanation, adhere to mature a introduced a principle, the judicial interpretation can better adapt and apply to the trial work. At present we should first solve the applicable procedure. Because the case entity processing and application of the law in practice can continuous exploration and discussion, but the procedure, procedural justice idea of law based, does not belong to the people's court can range of discretion. These problems include: what does not belong to the scope of jurisdiction of the case; case determination principle of territorial jurisdiction and jurisdiction level; different types of litigant's main body status; the standard charge litigation fees; the allocation of the burden of proof; special liquidation proceedings.
   
  　(two) in the trial practice
   
  　1, improve knowledge, strengthen corporate litigation investigation level. Company litigation dispute case for enterprises, improve the modern enterprise system, safeguard social fairness and justice, plays an important role in promoting economic construction and social development, the people's court is an important part of the construction of socialist harmonious society. The people's court may not because of a small number of the current corporate litigation disputes and ignore this kind of case, to maintain a high degree of attention, continuing to carry out research activities, timely solve and deal with the problem of company litigation cases, accumulation and summary trial experience, improve the trial level.
   
  　2 strengthen business training, improve the trial proceedings disputes skills. Serious Learning Co legislation and related theory, master the law and the provisions of judicial interpretation, comprehend its connotation. In addition, China's academic circles and judicial departments of company law has become increasingly active, the relevant papers and monographs appear constantly, offer some theoretical basis for the trial proceedings disputes, also deserves our attention to learning. In addition to playing the role of cases guiding role, pay attention to summing up and studying the typical case.
   
  　3 to actively explore the mediation rules, the pursuit of the best trial effect. We note that, in recent years the company litigation disputes mediation rate has not been high, research and mediation method to this kind of case is not has the very big relations, many judges have no master to balance the interests of parties in the mediation, unable to find the breakthrough point of mediation. Therefore, actively explore the mediation methods and ideas in accordance with the actual cases is an important aspect of corporate litigation dispute case work in the future.
    
 
 
 
Notes.
[1] Zhou Yousu: "the new company law theory", Law Press, 2006 edition, page 165th.
  [2] Li Qiaoyi: "the civil liability of shareholders" false capital contribution to the company creditors, load "Journal of Wuhan University" in 2004 ninth.
  [3] Zhao Xudong editor: "the new company law practice and answer", the people's court press 2005 edition, page 103rd.
  [4] Jiang Ping, Fang Liufang editor: "the new company law", Law Press, 1994 edition, page 134th.
  [5] high people's Court of Jiangsu province two people court: "identification" of qualification of shareholders of limited liability company, carrying "judicial" in 2003 second people.
  [6] Liu Junhai: "representative litigation of shareholder right to load", "commercial law" volume first, eighty-fifth pages.
  [7] Yang Lu: "study" the shareholders derivative suit, carrying "people's justice" in 2003 fourth.
  [8] Ke Ju: "lawsuit" the shareholders of the Limited by Share Ltd, Lin Yongrong editor: "the anthology of commercial law" (on), five southern publishing company in 1984, 100th - 101.
  [9] Zhou Jianlong: "Japan shareholder representative litigation system," carrier "commercial law" volume second, 265th pages.
  [10] Liu Junhai: "revision and interpretation of the company law: a moderate judicial intervention as the center", "law" set in 2005 third.
  [11] Ma Qiang: "the company deadlock and the ruling of the court to dissolve the company," Zhao Xudong editor: "Company Law Review" in 2005 third series, the people's court press 2005 edition, page ninety-ninth. 
 
Source: "law" in 2008 first