Išvestinis ieškinys: lyginamoji analizė ; Derivative action: a comparative analysis

Abstract

The topic of the Thesis is a Comparative Analysis of Derivative Action. Therefore, the Thesis' subject matter constitutes of various matters related to derivative action that are being analyzed considering the experience of foreign countries – especially Germany, France, USA, England. The review of case law shows that in Lithuania and some other countries derivative action is being used in practice very rarely. Therefore, the question arises what the reasons leads to the unpopularity of the derivative action. Also, in Lithuanian legislation there is only one provision for derivative action that contains only the definition of the institute. Due to the narrow regulation and lack of legal doctrine, there arises many problematic issues – what the procedural status of the company and shareholders who have submitted (and who did not) the action is, who has the duty to pay the costs, what the differences between derivative action and shareholder's personal actions are, etc. Answers to these and the other questions are given in five main parts of the Thesis. In the first part of the Thesis the concept of derivative action and the factors affecting formation of the institute as well as reflections of what objectives the legislator should seek by establishing derivative action in the statutory law are provided for. Finally, at the end some negative attitudes to the derivative action and doubts of necessity of such a remedy of interests of minority shareholders are provided for. In the second part the separation of the derivative action and shareholder's personal action is analyzed and types of derivative actions as well as an analytical assesment of what the derivative actions should be accepted in Lithuania are provided for. The third and the fourth parts contain analysis of conditions for granting and fulfilling the right to derivative action that are various in different countries and that lead to whether there is an adequate balance between the defence of minority shareholders' rights, on one side, and the principle of non-interference in company management, on the other side. Finally, the fifth part analyzes the problematic procedural aspects of derivative action – the problem of proper plaintiff in the derivative action that exists in Lithuanian law, the characteristics of paying litigation costs and potential ways of solving these issues.