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股东代位诉讼起源于英国衡平法,大陆法系和英美法系各国相继引入这种制度。我国新修订的《公司法》首次规定了股东代位诉讼制度,为股东提起代位诉讼提供了法律依据,但对原告资格的规定过于严格,不利于股东诉权的行使。借鉴国外立法的成功经验,结合我国实际,本文认为,取得股东代位诉讼原告资格应当具备以下条件:在不当行为发生时具有股东资格;在提起和维持代位诉讼时始终具有股东身份;能够公正、充分地代表公司和其他股东的利益。
The lawsuit of shareholder subrogation originated from British Equity Law. Civil and civil law countries and other countries in the Anglo-American law system successively introduced this system. The newly revised “Company Law” of our country first stipulates the shareholder subrogation lawsuit system, which provides the legal basis for the shareholders to bring the subrogation lawsuit. However, the provisions on the qualification of the plaintiff are too strict, not conducive to the exercise of the shareholder’s right of action. Based on the successful experience of foreign legislation and the reality of our country, this paper argues that the qualifications of the plaintiff to obtain shareholder subrogation should meet the following conditions: shareholders should be qualified in the event of misconduct; shareholders should always be shareholders when suing and maintaining the subrogation lawsuit; To represent the interests of the company and other shareholders.