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股东代表诉讼制度是保障公司以及股东合法权益的不可缺失的重要制度。然而,由于股东提起代表诉讼的诉讼利益与风险的显失均衡,以及股东“搭便车”心理的存在,再加上我国的“厌诉”思想的束缚,致使股东缺乏提起代表诉讼的积极性。但是由于每一个制度的价值都只有在其有效运行中才得以发挥,针对我国的实际情况,为了股东代表诉讼的制度价值在我国得以充分发挥,我国有必要建立起股东诉权激励机制。本文首先探讨了建立股东代表诉讼制度究竟是一个怎样的制度,然后分析了股东代表诉讼制度在我国的现状,接着从我国实际情况出发,结合我国立法及实践,论述了从哪些方面去构建该激励机制。
The shareholder representative litigation system is an indispensable and important system for protecting the legitimate rights and interests of the company and the shareholders. However, due to the unbalanced interests and risks brought by the lawsuit brought by the shareholders and the existence of the shareholders’ “free riding” mentality, coupled with the shackles of our “resentment” thinking, the shareholders have not filed a representative lawsuit The enthusiasm. However, since the value of each system can only be exerted in its effective operation, according to the actual situation in our country, in order to give full play to the institutional value of shareholder representative litigation in our country, it is necessary for our country to establish the incentive mechanism of shareholder’s right to appeal. This article firstly discusses what kind of system the shareholder representative litigation system is and then analyzes the current situation of the shareholder representative litigation system in our country. Then, proceeding from the actual situation in our country and combining with our country’s legislation and practice, it expounds where to build the incentive mechanism.