Derivative action in the United Kingdom, United States and China
from a perspective of hurisprudence and history
Yun Jiang
Art der Arbeit
Master-Thesis (ULG)
Universität Wien
Rechtswissenschaftliche Fakultät
Studiumsbezeichnung bzw. Universitätlehrgang (ULG)
Universitätslehrgang European and Asian Legal Studies (LL.M.)
Beata Verschraegen
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The company’s independent right to sue is the basis of a derivative action. The meaning of derivative is that the shareholder brings an action on behalf of the company and claims in the interest of the company. The plaintiff, de facto, is the company, meaning the recovery from the action shall be attribute to the company rather than the shareholder. The initiation of a derivative action is restricted to certain situations where the company has itself refused or failed to take measures, such as, the Chinese Company Law stipulates where any director, senior management person, controlling shareholders or even third parties of a company violates laws, administrative regulations or even the company’s articles of association during the performance of duties, he/she shall be liable for compensation if any damage is done to the company. Meanwhile, the shareholder is obliged to either require a demand on the relevant authorized organ to take over the action or show that such a demand has been futile.The debate upon the shareholder derivative action with regard to its value and indispensableness is still continuing. It was long been perceived as a remedy for minority shareholders and remains to be discussed in-depth in recent economic circumstances. The separation between ownership and managerial rights of modern listed companies or multi-national companies gives rise to far-reaching missions to derivative litigation supporting sustainable development of the world economy. In essence, the derivative action mechanism is a delicate balance between shareholders and managerial authority in the economic background that separation between ownership and managerial rights. The increasing complexity of business and financial transactions and the judiciary's attempts to handle these problems demonstrate the inadequacy of traditional theories of fiduciary obligation as measures of majority shareholder responsibility owed to the minority. The first part endeavors to reveal an overview on the derivative action. The second part aims to explain the jurisprudence of which the derivative action is rooted in. Some vital aspects of jurisprudence with regard to derivative action will be properly discussed, for instance: the theory of corporate legal personality; corporate governance; business judgement rule; the institutional function. The separation between ownership and managerial rights is a hallmark in the evolution of corporate law which justify the imperative of derivative action. In the third part, by exploring the legal history, inter alia, the origin and the statutory legislation on derivative action attempt to render a clearer perspective to this mechanism in a contextual review. Along with comparative analyses of the United Kingdom, the United States, and China, this exploration may serve feasible inspiration for future application or reform of derivative action which will make this mechanism practicable in a more effective manner.


Derivative Action Comparative Study Historic study
Yun Jiang
Haupttitel (Englisch)
Derivative action in the United Kingdom, United States and China
Hauptuntertitel (Englisch)
from a perspective of hurisprudence and history
80 Seiten
Beata Verschraegen
86 Recht > 86.90 Europarecht: Sonstiges
AC Nummer
Utheses ID
UA | 992 | 396 | |
Universität Wien, Universitätsbibliothek, 1010 Wien, Universitätsring 1