本文主要研究香港公司条例下的股东派生诉讼制度。整个研究分为六个部分，以详细阐述主要观点。第一部分介绍了本研究的原因和意义。第二部分是香港派生诉讼概述。第三部分是普通法中的派生诉讼，突出了其历史背景。第四部分论述了香港公司条例下派生诉讼的批判与改革。第五部分，对衍生行为进行评价和建议。最后得出了整个研究的结论。This dissertation focuses on shareholder’s derivative action under Hong Kong Company Ordinance. The whole study is divided into six sections so as to develop the main opinions in detail. The first section introduces the reason and significance of this study. The second section is an overview of derivative action in Hong Kong. The third section refers to derivative action in the common law and highlights its historical background. The forth section discusses criticism and reform of derivative action under Company Ordinance in Hong Kong. In fifth section, this study intends to make assessments and suggestions to derivative action. Finally it draws the conclusion of the whole study.
Table of Contents
1. Introduction 3
2. An Overview of Derivative Action in Hong Kong 4
2.1 The concept and features of derivative action 4
2.2 The functions of derivative action 5
3. The regulation of derivative action in the common law 5
3.1 Foss V. Harbottle Rule and its limitation 5
3.2 Restrictions of derivative action 6
4. The derivative action under the Companies Act in Hong Kong 8
4.1 The criticism of the old derivative action in Hong Kong 8
4.2 Reform of the derivative action of Companies Ordinance (Cap 622) 9
5. Assessment of the derivative action in Hong Kong 11
6. Conclusion 12
7. Bibliography 13
Derivative action is one of the most extraordinary reforms of modern company law. This dissertation aims to conduct a critical analysis on the statutory of derivative action under Company Ordinance of Hong Kong (Chapter 622) (hereinafter Cap 622), trying to put forward suggestions to improve the shareholder remedies, and make it more effective and flexible.
In the modern world, derivative action is one of the major reliefs to protect the shareholder’s interests, especially minority shareholders. In case Foss v. Harbottle, some important concepts such as “fraud on the minority” and “wrongdoer control” had already defined. It is so important to protect shareholder’s interests, therefore derivative action is an integral part of company law. However, the debates about minimum interference with management and appropriate investor protection attract a lot of attention in the historical development of modern company law. Just as Reisberg says, derivative action cannot avoid the challenges, that are, a middle course between excessive reliance on a litigation remedy and judicial recourse for the shareholders, and unreasonable interference in the management affairs of the company.
In different jurisdictions, the requirements to shareholder to initiate a derivative action are various. I have researched on some typical jurisdictions so as to make a solid theoretical foundation of this study. In the United States, corporate laws of states are different, and some of these states, such as California, Delaware, Nevada have instituted a lot of barriers to derivative action. American Bar Association set up complicated procedures for derivative action. Under the procedure, shareholders must file a demand on the board. Only when shareholders’ demand has been rejected, shareholders can file a suit to the court. In the United Kingdom, it sets pre-existing rules. According to corporate law in the United Kingdom, the purpose of derivative action is not to protect the shareholders, but to protect the corporation itself. In Europe, the derivative action are extremely rare. In many European countries, a minimum share is required to file a derivative action, and laws tend to prevent small s