作者：周显根     2016-12-28

内容提要 完善股份制度，确保股东权益，是公司立法的重要内容。本文从股东诉权的理论入手，在参考国外立法基础上，指出我国公司法中有关有限责任公司股东诉权立法不足，并对当前出现的股东权益纠纷股东如何行使诉权进行分析研究，提出完善股东诉权的立法建议，有利于有限责任公司健康稳定发展。

关健词 股东诉权 股东直接诉权 股东派生诉权 司法救济

随着我国现代企业制度的建立和企业股分制度改革的不断深入，在实行公司制企业中，公司股东为保护自已的合法权益起诉公司股东、公司的案件日趋增加。由于我国公司法中特别是有限责任公司立法中对股东诉权行使的法律规定存在不足和空白，造成律师在从事该项诉讼业时，遇到许多法律上的障碍。如1998年7月，甲公司由乙、丙、丁三自然人组成设立有限责任公司，公司注册资本为人民币500万元，乙、丙 、丁的股分比例为4：2：4，其中丁有20%用现金投入，另20%用专有技术无形资产投入，在公司经营中，由于丁的专有技术不能发挥其应有的作用，造成公司亏损，乙、丙到有关部门咨询，发现丁的技术存在严重缺陷，根本不能生产三方约定的产品，同时，丁的无形资产三方在设立公司时由三方议价投入，未进行法定作价评估。为此，乙、丙与丁进行协商解散公司，因丁反对未达章程所规定的三分之二以上表决权股东同意而未成，乙、丙诉请法院，要求：1、解散甲公司，2、因丁的无形资产不实，要求丁认缴100万元的注册资本，3、公司亏损由三方按比例承担。在本案中，股东是否有权提出解散公司请求？股东能否直接对未出资或出资不实的股东行使诉权？立法未作规定。本文试就有限责任公司股东有关诉权问题作些探讨，以求教同行。

一、股东诉权的理论研究和国外立法股东诉讼是股东保障自已合法权益、规范公司行为为目的的现代公司治理结构上的制度安排，实行对股东诉权保护，有利于强化和完善公司内部经营机制，监督和制约公司经营管理人员依法依章行事，防止其滥用公司权力。当股东的合法权益受到损害时，股东如何行使诉权？19世纪英、美国家率先在衡平法上创设了股东派生诉讼 。股东诉讼已成为各国公司股东在其利益受到侵害时寻求法律救济的主要手段之一。根据股东诉讼提起权基础的不同，股东诉讼可分为直接诉讼和派生诉讼。直接诉讼是指股东为了自身利益而以股东身份对公司或其它权利侵害人提起的诉讼，因而，股东直接诉讼所要保护的利益是股东自已的利益，而非公司整体利益；起诉的对象可以是公司或公司的其它股东、董事、经理、监事等；诉讼结果利益归属于股东自身，而非公司所有。如日本商法典第247条第1款规定：于下列情形，股东可以以诉讼请求撤销全会决议：1、召集程序或表决违反法令或章程，或显著不公时；2、决议内容违反章程时；3、对决议有特别利害关系者行使表决权，致决议显著失当时。美国、德国、韩国的商法、公司法对股东的直接诉讼在法律上作了明文规定 ，日本商法规定的股东直接可诉对象，均是股东为自身利益所为。派生诉讼是指当公司的正当权益受到他人侵害特别是控股股东侵害时，如果公司怠于采取行动或诉讼，具备法定条件的股东可以代表公司对侵害人提起诉讼。如日本商法典第267条规定：1、自6个月前起连续集有股份的股东，可以以书面请求公司提起追究董事责任的诉讼；2、自有前款请求日起30天内，公司不提起诉讼时，前款的股东可以为公司提起诉讼；3、因经过前款所定期间，有对公司产生难以回复损失时，第一款的股东，可以不拘前二款规定，径直提起前款的诉讼；4、股东提起前二款诉讼时，法院可以根据被告的请求，命该股东提供担保。……。美国公司法也规定了派生诉讼的5种情形 。可见，派生诉讼中股东起诉是为公司利益，其提起诉讼有其前置条件即书面提请公司诉讼，竭尽公司内部救济，当公司怠于行使诉权时，股东才可以自已名义起诉。同时，起诉的股东必须符合“当时股分拥有原则”，且应是善意、公平、公正地为公司利益着相，而不是为个人私利。

二、我国公司立法不足和目前股东寻求司法救济形式最高人民法院于2000年10月30日颁布的《民事案件案由规定（试行）》中有股东权纠纷和损害公司权益纠纷规定，案由是根据当事人的诉请和所发生法律关系加以确定

的。该规定为股东寻求司法救济提供程序上必要的依据。由于公司实体立法的不足，致使股东诉权司法救济得不到有效保护。现结合公司法和目前股东权益纠纷主要情形作如下分析：

（一）、股东未出资、出资不实纠纷。依照公司法第25条、第28条的规定，股东未出资，其他股东可以追究未出资股东的违约责任；股东出资不实，其他股东承担连带责任。在上述有关违约和承担连带民事责任条款规定中，由谁行使诉权去追究他们的民事责任？如何行使诉权？立法未作规定。作者认为：股东未出资和出资不实，由于发生场合不同，其行使诉权的方式也是不同的。股东未出资，其行使的诉权是直接诉权而不是派生诉权，理由在于1、股东未出资的行为，发生在公司设立过程中，且股东未出资，有可能导致以人合为基础的有限责任公司不能设立的情形，而此时拟设立公司不具有法律意义上的民事主体资格。2、股东未出资，违反了股东之间所订的公司设立协议和共同制定的公司章程所规定的义务，是对拟设立公司其他股东权益的侵犯。3、公司法第25条所规定的违约责任，是未出资股东向足额缴纳出资股东所承担的违约责任，而不是未出资股东向公司所承担的违约责任。因而，股东未出资发生纠纷，足额出资的股东是案件中的原告，未出资股东是案件中的被告，公司在案件中不具备当事人的诉讼主体资格。致于出资不实发生的纠纷，股东所行使的诉权是派生诉权。原因在于1、股东出资不实，发生在公司设立以后。公司法第28条规定：有限责任公司设立后，发现作为出资的实物、工业立权……的实际价额显著低于公司章程所定的价额的，应当由该出资股东补交其差额，此时公司已具备民事诉讼主体资格。2、股东出资不实，影响公司正常运作和公司注册完整性及公司对外承担民事责任能力，损害公司的财产利益。3、公司法第28条规定：……公司设立时其他股东对其承担连带责任，表明追究股东承担连带责任的主体应是股东本身以外的第三者即公司自身。因而，在股东出资不实时，公司应向出资不实股东追究其责任，只有在公司不行使诉权的情形下，公司股东才有权行使诉权。可见，在股东出资不实派生诉讼案件中，出资不实股东是案件中的被告，如公司愿意参加诉讼，是案件中有独立请求权的第三人，如公司怠于行使诉权构成对出资股东权益侵犯，是案件中的共同被告。

（二）、股权转让纠纷。现行公司法第35条对有限责任公司股东股权转让作了相应的规定，该规定明确要求股东在向股东以外的人转让股权时，必须经全体股东的过半数同意；同时，公司法第38条第10款规定 ：对股东向股东以外的人转让出资作出决议是股东会的职权。目前，有的股东未经股东会决议，私下把股权转让给股东以外的第三者，该股东的侵权行为，由公司行使诉权还是由股东直接行使诉权，实践中有不同的看法。作者认为：对该股东的侵权行为，应由公司的其他股东直接对转让出资的股东行使诉权，主要理由：1、公司股东在出资转让过程中所产生的权利、义务，是股东对股东所享受的权利和承担的义务，因而，公司法第35条和第38条第10款所规定的内容，也是公司股东权利、义务之规定。2、公司股东在向股东以外的人转让出资时，未经其他股东同意，直接侵犯了其他股东的优先购买权，同时也违反了全体股东共同意思表示的章程之约定。3、根据公司法第35条第2款和第38条第10款规定 ，股东向股东以外的人转让出资，该转让出资协议的效力，有待于其他股东的意思表示，与公司的意思表示无关。

（三）、公司管理人员职务侵权纠纷。公司法第59 条规定：董事、监事、经理应当遵守章程规定，忠实履行职务，维护公司利益；第63条规定：董事、监事、经理执行职务时违反法律、行政法规或公司章程的规定，给公司造成损害的，应当承担赔偿责任。因而，作为公司的董事、经理、监事等管理人员，他们对公司负有诚信、忠诚之义务，他们在履行职务时，应依法依章行使，如他们不履行职责或违法违章行使职责，给公司造成损害，由谁行使诉权，追究他们民事责任，上述条款未作进一步规定。作者认为：追究公司管理人员职务侵权的民事责任，应由公司作为原告行使诉权，因为他们不履行职务或违法、违章行使职权，损害了公司的利益。如公司不行使诉权或怠于行使诉权，股东有权为公司的利益代表公司进行诉讼，此时

公司的诉讼地位是案件中的第三人。

（四）、公司决议侵犯股东权益纠纷。公司法第111条规定：股东大会、董事会的决议违反法律、行政法规，侵犯股东合法权益的，股东有权向人民法院提起要求停止该违法行为和侵害行为的诉讼。该条规定仅适用于股份有限公司股东。而对有限责任公司股东如董事会、股东会也存在上述情形，可否起诉？在有限责任公司立法中是个空白。我国澳门商法典公司编总则第228条、229条、230条、231条对有关“股东会”决议之无效、可撤销决议、撤销之诉、无效之诉及撤销之诉共同规定中明确载明：对违法的股东会决议，股东有权提起诉讼，起诉的对象是公司。结合我国公司法第111条和澳门的立法经验，作者认为：如有限责任公司股东大会、董事会决议违法，侵犯股东合法权益的，股东有权以自已的名义直接对公司行使诉权，这样有利于股东权益得以充分有效的司法保障。但在公司实际运行过程中，股东大会依照公司法的规定是由董事会召集、由董事长主持，董事会是由董事长召集和主持，如果上述决议是由具体操作的董事、经理过错行为引起的，则有过错的董事、经理是案件中的第三人，对损害公司利益的行为承担相应的民事责任。

（五）、请求强制解散公司权益纠纷。公司法对有限责任公司和股份有限公司有关公司可以解散的情形作了共同的规定即公司法第190条规定，该条规定所载的情形，均体现了股东共同的意思表示，并未作出因其它事由需要解散的规定。作为以人合为基础构成的有限责任公司，如股东意见不合或某种利益冲突，在公司无法进行经常经营活动或无法由股东会作出决议解散的情况下，股东可否请求司法救济要求解散公司之诉权？回答应当是肯定的，因为：1、公司法第38条第11款规定：解散公司是股东会的决议事项，而股东大会所需拟议事项，又是以股东解散公司提案为前提，表明在正常情况下，提请公司解散权是股东享有的权力。2、如股东大会对股东提请公司解散的议案，不召开股东大会或不作出决议，实则是其他股东对要求解散公司股东权利的侵犯，也是对要求解散公司股东财产权益的侵犯，因为公司不解散，股东应享有的财产权益继续被公司冻结使用，股东无法对该财产行使权利。3、从国外立法看：德国有限公司法第61条、日本有限公司法第71条均规定 ，持有10%以上股份的股东有权提请司法机关解散公司。由于股东要求解散公司，实则是终止股东之间以章程为基础构成的在公司所有的权利、义务法律关系，因而，股东要求解散公司被诉对象是其他股东，在程序上是变更之诉。

三、完善公司立法，确保股东诉权

在我国有限责任公司立法中，由于对股东诉权在程序上如何操作没有作出详尽的规定，造成公司法中有关追究他人责任条款的规定成为一纸空文。有些股东由于无司法救济措施可资利用，致使自已利益得不到充分有效的司法保障。作为审判机关，鉴于公司法中对股东诉权无实质性规定，对股东起诉的案件，又一时难以裁判。因而，加强公司立法，完善股东诉权的保护制度是当前公司立法的一项重要内容。为此，笔者建议对有限责任公司股东诉权保护应从以下几方面进行完善：

（一）、进一步明确股东直接诉权。只要股东在公司运作过程中，其利益受到公司或大股东的侵害，都有权直接行使诉权。现行公司法中，应增设股东权利、义务专门章节，把股东诉权规定在该章节中 ，便于股东行使诉权和审判机关操作。对股东直接诉权，应明确股东诉权的诉因、种类、诉讼对象、审判管辖等。具体的立法方式可参照合同法关于合同终止立法方式，既有具体的规定，又有概括弹性规定。

（二）、明确股东的派生诉权。在股东派生诉权立法上，应当明确股东派生诉讼的情形、股东派生诉讼的提起条件如是否有持股比例和持股时间的限制等，股东派生诉讼结果利益归属，公司、其他股东在派生诉讼中地位等。

（三）、赋予股东对公司强制解散、遭受不公平待遇的司法救济权。在公司强制解散问题上，应明确公司强制解散的事由、股东提起的条件、公司被强制解散后股东的法律责任等。致于不公平待遇股东诉权如公司重大决策未充分考虑少数股东意见、个别股东被无故限制股东的权利等在立法上应有所体现。对不公平待遇起诉应有时间上限制，否则会影响公司的正常运作。

参考书目

1、《中国法学》 2000年第3期 2002年第1期

2、《浙江审判》 2001年第6期

3、《法律适用》 1999年第5期 2001年第7期

4、《日本商法典》 中国法制出版社 2000年3月第1版

5、《澳门商法典》 中国人民大学出版社 1999年11月第1版

6、《当代美国法律》 社会科学文献出版社 2001年2月第1版

（本篇论文获2002年度浙江省律师理论实务研讨会二等奖 ）

Author: Zhou Xiangen December 28, 2016

Improving the stock system and ensuring shareholder rights and interests is an important aspect of company legislation. This article starts with the theory of shareholder litigation rights, and based on reference to foreign legislation, points out the shortcomings of legislation on shareholder litigation rights in limited liability companies in China's company law. It also analyzes and studies how shareholders exercise their litigation rights in current shareholder equity disputes, and proposes legislative suggestions to improve shareholder litigation rights, which is conducive to the healthy and stable development of limited liability companies.

Key Words: Shareholders' Litigation Rights Shareholders' Direct Litigation Rights Shareholders' Derivative Litigation Rights Judicial Remedies

With the establishment of China's modern enterprise system and the continuous deepening of the reform of the enterprise share system, there is an increasing number of cases in which shareholders sue shareholders and companies to protect their legitimate rights and interests in the implementation of corporate enterprises. Due to the shortcomings and gaps in the legal provisions on the exercise of shareholder litigation rights in China's company law, especially in the legislation on limited liability companies, lawyers encounter many legal obstacles when engaging in this litigation industry. In July 1998, Company A was established as a limited liability company consisting of three natural persons: Party B, Party C, and Party D. The registered capital of the company was RMB 5 million, and the proportion of shares held by Party B, Party C, and Party D was 4:2:4. Among them, 20% of Party D was invested in cash, while the other 20% was invested in intangible assets of proprietary technology. In the company's operation, due to the inability of Party D's proprietary technology to play its due role, the company suffered losses. Party B and Party C consulted with relevant departments, It was found that Ding's technology has serious defects and cannot produce the products agreed upon by the three parties. At the same time, Ding's intangible assets were negotiated and invested by the three parties when establishing the company, and no legal valuation evaluation was conducted. Therefore, Party B, Party C, and Party D negotiated the dissolution of the company. However, due to Party D's opposition and failure to reach the consent of more than two-thirds of the voting shareholders as stipulated in the articles of association, Party B and Party C filed a lawsuit with the court, demanding: 1. Dissolve Company A; 2. Due to Party D's intangible assets being untrue, Party D is required to subscribe to a registered capital of 1 million yuan; 3. The losses of the company shall be borne by the three parties in proportion. In this case, do shareholders have the right to request the dissolution of the company? Can shareholders directly exercise their litigation rights against shareholders who have not made capital contributions or whose capital contributions are untrue? Legislation does not provide for it. This article attempts to explore the issue of litigation rights for shareholders of limited liability companies, in order to seek advice from colleagues.

1、 Theoretical research on shareholder litigation rights and foreign legislation on shareholder litigation are institutional arrangements in modern corporate governance structures aimed at protecting shareholders' legitimate rights and interests and regulating company behavior. Implementing protection of shareholder litigation rights is conducive to strengthening and improving the internal business mechanism of the company, supervising and restricting the company's management personnel to act in accordance with regulations, and preventing them from abusing the company's power. How can shareholders exercise their right to sue when their legitimate rights and interests are harmed? In the 19th century, British and American countries pioneered the creation of shareholder derivative litigation in equity. Shareholder litigation has become one of the main means for shareholders of companies in various countries to seek legal remedies when their interests are infringed upon. According to the different basis of shareholder litigation, shareholder litigation can be divided into direct litigation and derivative litigation. Direct litigation refers to a lawsuit filed by shareholders as shareholders against the company or other rights infringers for their own interests. Therefore, the interests that shareholders need to protect in direct litigation are their own interests, not the overall interests of the company; The object of prosecution can be the company or other shareholders, directors, managers, supervisors, etc. of the company; The interests of the litigation result belong to the shareholders themselves, not to the company. As stipulated in Article 247 (1) of the Japanese Commercial Code, shareholders may request the revocation of a plenary meeting resolution through litigation in the following circumstances: 1. When the convening procedure or voting violates laws, regulations or articles of association, or is significantly unfair; 2. When the content of the resolution violates the articles of association; 3. The exercise of voting rights by individuals with special interests in the resolution results in significant loss of time. The commercial and company laws of the United States, Germany, and South Korea have made clear provisions in law regarding direct litigation by shareholders, while Japanese commercial law stipulates that shareholders are directly subject to litigation for their own interests. Derivative litigation refers to when the legitimate rights and interests of a company are infringed upon by others, especially by controlling shareholders. If the company neglects to take action or file a lawsuit, shareholders with legal conditions can represent the company to file a lawsuit against the infringer. As stipulated in Article 267 of the Japanese Commercial Code: 1. Shareholders who have continuously accumulated shares since 6 months ago may request in writing that the company file a lawsuit to hold directors accountable; 2. If the company does not file a lawsuit within 30 days from the date of the request mentioned in the preceding paragraph, the shareholders mentioned in the preceding paragraph may file a lawsuit on behalf of the company; 3. If, after the period specified in the preceding paragraph, it is difficult for the company to recover losses, the shareholders mentioned in the first paragraph may, without prejudice to the provisions of the first two paragraphs, directly file a lawsuit in accordance with the preceding paragraph; 4. When a shareholder brings a lawsuit in the first two paragraphs, the court may, at the request of the defendant, order the shareholder to provide a guarantee. The US company law also provides for five situations of derivative litigation. It can be seen that shareholder litigation in derivative litigation is for the benefit of the company. The prerequisite for filing a lawsuit is to submit a written request to the company for litigation, and to exert internal remedies within the company. Only when the company is negligent in exercising its litigation rights can shareholders sue in their own name. At the same time, the sued shareholders must comply with the "principle of ownership of shares at that time" and should act in good faith, fairly, and fairly for the interests of the company, rather than for personal gain.

2、 The Supreme People's Court issued the "Provisions on the Causes of Civil Cases (Trial)" on October 30, 2000, which includes provisions on disputes over shareholder rights and disputes over damages to company rights and interests. The cause of action is determined based on the petitions of the parties and the legal relationships that have occurred

of This provision provides necessary procedural basis for shareholders to seek judicial relief. Due to insufficient legislation on corporate entities, the judicial remedies for shareholders' litigation rights are not effectively protected. Based on the Company Law and the current main situations of shareholder equity disputes, the following analysis is made:

（1） Disputes over shareholders' failure to make capital contributions or false capital contributions. According to Articles 25 and 28 of the Company Law, if a shareholder fails to make a capital contribution, other shareholders may hold the non contributing shareholder liable for breach of contract; If the shareholder's capital contribution is false, other shareholders shall bear joint and several liability. In the above provisions on breach of contract and joint and several civil liability, who exercises the right of action to pursue their civil liability? How to exercise the right to sue? Legislation does not provide for it. The author believes that shareholders' lack of capital contribution and untrue capital contribution may result in different ways of exercising their litigation rights due to different occasions. If a shareholder fails to make a capital contribution, their exercise of the right of action is a direct right of action rather than a derivative right of action. The reason is that: 1. The shareholder's failure to make a capital contribution occurs during the company's establishment process, and the shareholder's failure to make a capital contribution may result in the inability to establish a limited liability company based on human rights cooperation, and at this time, the proposed company does not have legal civil subject qualifications. 2. The shareholder's failure to contribute capital violates the obligations stipulated in the company establishment agreement and the jointly formulated articles of association between the shareholders, and is an infringement of the rights and interests of other shareholders of the proposed company. 3. The liability for breach of contract stipulated in Article 25 of the Company Law refers to the liability for breach of contract borne by non contributing shareholders to fully paying shareholders, rather than the liability for breach of contract borne by non contributing shareholders to the company. Therefore, if there is a dispute over the shareholder's failure to contribute, the shareholder who fully contributes is the plaintiff in the case, and the shareholder who did not contribute is the defendant in the case. The company does not have the qualification of a litigant in the case. The right of action exercised by shareholders in disputes arising from false capital contributions is a derivative right of action. The reason is that 1. The shareholder's investment was not truthful, which occurred after the establishment of the company. Article 28 of the Company Law stipulates that if, after the establishment of a limited liability company, it is found that the actual value of the physical assets, industrial rights, etc. as capital contributions is significantly lower than the value specified in the company's articles of association, the capital contribution shareholder shall make up for the difference. At this time, the company has qualified as a civil litigation subject. 2. The shareholder's false investment affects the normal operation of the company, the integrity of the company's registration, and the company's ability to bear civil liability externally, damaging the company's property interests. 3. Article 28 of the Company Law stipulates that... when a company is established, other shareholders shall bear joint and several liability towards it, indicating that the subject of joint and several liability for shareholders shall be a third party other than the shareholders themselves, that is, the company itself. Therefore, if a shareholder's contribution is not made in real time, the company should hold the shareholder responsible for the untrue contribution. Only in cases where the company does not exercise the right to sue, the company's shareholders have the right to exercise the right to sue. It can be seen that in derivative litigation cases where shareholders make false contributions, shareholders who make false contributions are the defendants in the case. If the company is willing to participate in the litigation, they are the third party with independent claims in the case. If the company neglects to exercise its litigation rights, it constitutes an infringement of the rights and interests of the contributing shareholders, and they are the joint defendants in the case.

（2） Disputes over equity transfer. Article 35 of the current Company Law provides corresponding provisions for the transfer of equity of shareholders of limited liability companies, which clearly requires shareholders to obtain the consent of a majority of all shareholders when transferring equity to someone other than shareholders; Meanwhile, Article 38, Paragraph 10 of the Company Law stipulates that it is the authority of the shareholders' meeting to make resolutions on the transfer of capital contributions by shareholders to persons other than shareholders. At present, some shareholders privately transfer their equity to a third party other than shareholders without a resolution of the shareholders' meeting. There are different opinions in practice on whether the company exercises the right to sue or whether the shareholder exercises the right to sue directly. The author believes that the infringement behavior of the shareholder should be directly exercised by other shareholders of the company against the shareholder who transferred the capital contribution. The main reasons are: 1. The rights and obligations generated by the company's shareholders during the capital transfer process are the rights and obligations enjoyed and assumed by the shareholders towards the shareholders. Therefore, the provisions of Article 35 and Article 38 (10) of the Company Law are also provisions on the rights and obligations of the company's shareholders. 2. When shareholders of the company transfer their capital contributions to someone other than shareholders, without the consent of other shareholders, they directly infringe on the preemptive right of other shareholders, and also violate the provisions of the articles of association expressed by all shareholders. 3. According to Article 35, Paragraph 2, and Article 38, Paragraph 10 of the Company Law, if a shareholder transfers its capital contribution to a person other than a shareholder, the effectiveness of the transfer of capital contribution agreement depends on the expression of intention by other shareholders and is not related to the company's expression of intention.

（3） Disputes over job infringement by company management personnel. Article 59 of the Company Law stipulates that directors, supervisors, and managers shall comply with the provisions of the articles of association, faithfully perform their duties, and safeguard the interests of the company; Article 63 stipulates that if a director, supervisor, or manager violates laws, administrative regulations, or the company's articles of association while performing their duties and causes damage to the company, they shall be liable for compensation. Therefore, as directors, managers, supervisors, and other management personnel of the company, they have the obligation of integrity and loyalty to the company. When performing their duties, they should exercise them in accordance with the law and regulations. If they fail to perform their duties or illegally exercise their duties, causing damage to the company, who will exercise the right of action and hold them accountable for civil liability, and the above provisions do not provide further provisions. The author believes that the civil liability for the infringement of duties by company management personnel should be exercised by the company as the plaintiff, as their failure to perform their duties or illegal or irregular exercise of power harms the interests of the company. If the company fails to exercise its litigation rights or neglects to exercise its litigation rights, shareholders have the right to represent the company in litigation for the benefit of the company

The company's litigation status is the third party in the case.

（4） Dispute over infringement of shareholder rights by company resolution. Article 111 of the Company Law stipulates that if a resolution of the shareholders' meeting or the board of directors violates laws or administrative regulations, or infringes on the legitimate rights and interests of shareholders, shareholders have the right to file a lawsuit with the people's court to demand the cessation of the illegal or infringing act. This provision only applies to shareholders of a limited liability company. Can the shareholders of a limited liability company, such as the board of directors and shareholders' meeting, be sued? There is a gap in the legislation of limited liability companies. Article 228, 229, 230, and 231 of the General Provisions of the Company Code of the Macao Commercial Code of China clearly state that shareholders have the right to file a lawsuit against illegal resolutions of the shareholders' meeting, and the object of the lawsuit is the company. Based on Article 111 of the Company Law of China and the legislative experience of Macau, the author believes that if the resolutions of the shareholders' meeting or the board of directors of a limited liability company are illegal and infringe on the legitimate rights and interests of shareholders, shareholders have the right to directly exercise their litigation rights against the company in their own name, which is conducive to the full and effective judicial protection of shareholders' rights and interests. However, in the actual operation of the company, the shareholders' meeting is convened by the board of directors and presided over by the chairman in accordance with the provisions of the company law. The board of directors is convened and presided over by the chairman. If the above resolutions are caused by the fault behavior of the directors or managers involved in specific operations, the directors or managers who are at fault are the third party in the case and shall bear corresponding civil liability for the actions that harm the interests of the company.

（5） Request for compulsory dissolution of the company's equity disputes. The Company Law provides a common provision for the dissolution of limited liability companies and joint stock limited companies, which is Article 190 of the Company Law. The situations mentioned in this provision reflect the joint expression of shareholders' will, and there is no provision for dissolution due to other reasons. As a limited liability company formed on the basis of human cooperation, if shareholders have different opinions or certain conflicts of interest, and the company is unable to carry out regular business activities or cannot be dissolved by a resolution of the shareholders' meeting, can shareholders request judicial relief to demand the right to sue for the dissolution of the company? The answer should be affirmative because: 1. Article 38, Paragraph 11 of the Company Law stipulates that the dissolution of a company is a matter decided by the shareholders' meeting, and the proposed matters required by the shareholders' meeting are based on the shareholders' proposal to dissolve the company, indicating that under normal circumstances, the right to request the dissolution of the company is the right enjoyed by the shareholders. 2. If the shareholders' meeting does not convene a shareholders' meeting or make a resolution on a proposal for the dissolution of the company, it is actually an infringement of the rights of other shareholders requesting the dissolution of the company, and also an infringement of the property rights and interests of shareholders requesting the dissolution of the company. Because the company does not dissolve, the property rights and interests that shareholders should enjoy continue to be frozen and used by the company, and shareholders are unable to exercise their rights over the property. 3. From the perspective of foreign legislation, both Article 61 of the German Limited Company Law and Article 71 of the Japanese Limited Company Law stipulate that shareholders holding more than 10% of the shares have the right to request judicial authorities to dissolve the company. Due to the shareholder's request to dissolve the company, which is actually the termination of all the rights and obligations legal relationships between shareholders based on the articles of association in the company, the shareholder's request to dissolve the company is sued against other shareholders, which is a change of procedure lawsuit.

3、 Improve company legislation to ensure shareholder litigation rights

In the legislation of limited liability companies in China, due to the lack of detailed regulations on how to operate shareholders' litigation rights in the procedure, the provisions on holding others accountable in the company law have become a dead letter. Some shareholders lack sufficient and effective judicial protection for their own interests due to the lack of judicial remedies available. As a judicial authority, given the lack of substantive provisions on shareholder litigation rights in the Company Law, it is difficult to adjudicate cases filed by shareholders for the time being. Therefore, strengthening company legislation and improving the protection system of shareholder litigation rights is an important aspect of current company legislation. Therefore, the author suggests that the protection of shareholders' litigation rights in limited liability companies should be improved from the following aspects:

（1） Further clarify the direct litigation rights of shareholders. As long as shareholders' interests are infringed upon by the company or major shareholders during the operation of the company, they have the right to directly exercise their litigation rights. In the current company law, a special chapter on shareholders' rights and obligations should be added, and shareholders' litigation rights should be stipulated in this chapter to facilitate shareholders' exercise of litigation rights and the operation of judicial organs. For shareholders' direct litigation rights, the cause of action, type, object of action, and jurisdiction of the trial should be clearly defined. The specific legislative method can refer to the Contract Law on the legislative method of contract termination, which includes both specific provisions and general flexible provisions.

（2） Clarify the derivative litigation rights of shareholders. In the legislation of shareholder derivative litigation rights, it is necessary to clarify the situation of shareholder derivative litigation, the conditions for filing shareholder derivative litigation, such as whether there are restrictions on shareholding ratio and shareholding time, the ownership of shareholder derivative litigation results and interests, and the status of the company and other shareholders in derivative litigation.

（3） Grant shareholders the right to judicial remedies for forced dissolution and unfair treatment of the company. In the issue of compulsory dissolution of a company, the reasons for the compulsory dissolution of the company, the conditions proposed by shareholders, and the legal responsibilities of shareholders after the company is forcibly dissolved should be clarified. Due to unfair treatment of shareholders' litigation rights, such as insufficient consideration of minority shareholder opinions in major company decisions, and unreasonable restrictions on shareholder rights by individual shareholders, etc., should be reflected in legislation. There should be a time limit for prosecuting unfair treatment, otherwise it will affect the normal operation of the company.

Bibliography

1. Chinese Law, Issue 3, 2000, Issue 1, 2002

2. Zhejiang Trial, Issue 6, 2001

3. Law Application, Issue 5, 1999, Issue 7, 2001

4. Japanese Commercial Code, China Legal Publishing House, 1st edition, March 2000

5. Macau Commercial Code, Renmin University of China Press, November 1999, 1st edition

6. Contemporary American Law, Social Science Literature Press, February 2001, 1st edition

(This paper won the second prize at the 2002 Zhejiang Provincial Lawyer Theory and Practice Seminar)