The statutory derivative action [2]
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关键词:CommonwealthComparative lawDerivative actionsHong KongUnited StatesCompany law
areholder brought an action on behalf of themselves and all other shareholders against the directors and other defendants alleging that those defendants had lost the company's property through concerted illegal activity. In denying the plaintiffs the right to pursue the action, Sir James Wigram V.C. indicated that, as a general rule, it was the corporation which was the proper plaintiff for injuries done to it:
“ It was not, nor could it be successfully argued, that it was a matter of course for any individual members of a corporation thus to assume to themselves the right of suing in the name of the corporation. In law, the corporation, and the aggregate members of the corporation, are not the same thing for purposes like this, and the only question can be, whether the facts alleged in the case justify a departure from the rule which prima facie would require that the corporation should sue in its own name and in its corporate character, or in the name of someone whom the law has appointed to be its representative…” 错误!超链接引用无效。
This proper plaintiff/claimant aspect of the rule in Foss v Harbottle was provided with the qualification that claims of justice would be found superior to any *J.B.L. 629 difficulties arising out of technical rules respecting the mode in which corporations are required to sue.错误!超链接引用无效。
What is somewhat interesting is that the means by which justice could allow shareholders to bring actions on behalf of the company itself were already well advanced in the United States by 1843. According to the research of Professor Bert Prunty of New York University,错误!超链接引用无效。 the original cases in the United States from which the concept of a derivative action developed were decided as early as 1822. Starting with Attorney General v Utica Ins Co 错误!超链接引用无效。 and proceeding through Ogden v Kip, 错误!超链接引用无效。 and Verplanck v Mercantile
Insurance Co, 错误!超链接引用无效。 there was an acceptance in the United States that the equity courts could deal with intra-corporate disputes and that in a case of breach of trust, an appropriate claim would lie against the culpable individuals “ calling them to account for the use and benefit of the company at large” .错误!超链接引用无效。 By the early 1830s, the cases of Robinson v Smith 错误!超链接引用无效。 and Taylor v Miami Exporting Co 错误!超链接引用无效。 confirmed that various state courts were using the trust-corporation analogy错误!超链接引用无效。 to justify actions by individual stockholders (as they are known in the United States) on behalf of the corporations against individuals (usually officers) who had breached their obligations to the corporation, usually by joining the corporation as a party to the suit.错误!超链接引用无效。 The first case by the US Supreme Court to recognise the derivative action was Dodge v Woolsey. 错误!超链接引用无效。 While the equitable principles enabling derivative action controlling the case were those *J.B.L. 630 developed in the United States, reference was made to Foss v Harbottle and the developing English law.错误!超链接引用无效。
That the company is the proper plaintiff/claimant for wrongs done to the company (the proper plaintiff aspect of the rule in Foss v Harbottle ) is most often considered in the context of derivative actions; however, the rule also involves a second aspect, that is, concerning the internal management of the company. The two aspects were enumerated by Jenkins L.J. in the case of Edwards v Halliwell 错误!超链接引用无效。 in the following terms:
“ First, the prope
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