股东代表诉讼适用实证研究:以费用补偿为视角（英文）
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摘要
<正>Ⅰ. INTRODUCTION Derivative action was introduced into the Chinese Company Law for the very first time during the revision process in 2005. Some scholars have argued that derivative action was actually permitted under the Chinese Company Law
引文
1 Article 111 of the Chinese Company Law of 1993 stated that'where a resolution of a shareholder general meeting or of the board of directors violates the law or administrative rules and regulations, or infringes the lawful rights and interests of the shareholders,the shareholders concerned shall have the right to bring a lawsuit in a people's court demanding that such illegal or infringing action be stopped.'
2 KATHARINA PISTOR&XU CHENGGANG, DETERRENCE AND REGULATORY FAILURE IN EMERGING FINANCIAL MARKETS:COMPARING CHINA AND RUSSIA, WORKING PAPER, at http://www.wcfia.harvard.edu(Last visited on August23,2013).
3 Zhang Xianchu, Practical Demands to Update the Company Law,28 Hong Kong Law Journal 251,253(1998).
4 Nils Krause&Qin Chuan, An Overview of China's New Company Law, 28 Company Lawyer 316(2007).
5 Huang Hui, Shareholder Derivative Litigation in China:Empirical Findings and Comparative Analysis, 27 Banking and Finance Law Review 619(2012).
6 Mark D. West, Why Shareholders Sue:the Evidence from Japan, 30 Journal of Legal Studies 351,372(2001).
7 Lin Shaowei, Derivative Actions in China:One Step Forward, Two Steps Back, 23 International Company and Commercial Law Review 197(2012).
8 Ma Fang, The Deficiencies of Derivative Actions in China, 31 Company Lawyer 150(2010); Huang Hui, The Statutory Derivative Action in China:Critical Analysis and Recommendations for Reform, 4 Berkeley Business Law Journal 227(2007); Huang Xiao,Derivative Actions in China:Law and Practice, 6 Cambridge Student Law Review 246(2010).
9 William M. Lands, An Economic Analysis of the Courts, 14 Journal of Law and Economics 61(1971); John P. Gould, The Economics of Legal Conflicts, 2 Journal of Legal Studies 279(1973); Richard A. Posner, An, Economic Approach to Legal Procedure and Judicial Administration, 2 Journal of Legal Studies 399(1973).
10 Bradford Cornell. The Incentive to Sue:An Option Pricing Approach, 19 Journal of Legal Studies 173(1990).
11 Foss v. Harbottle(1843)2 Hare 461.
12 In the English law, the plaintiff shareholders face the risk of paying not only the legal expenses of themselves but also the legal costs incurred by the defendants owing to the loser-pays rule that costs follow the event. In the US, a plaintiff shareholder has to bear his or her own legal cost even if an action is successful. Further details of fundintg rules in these two counties will be discussed below.
13 John D. Wilson, Attorney Fees and the Decision to Commence Litigation:Analysis, Comparison and an Application to the Shareholder's Derivative Action, 5 Windsor Yearbook of Access to Justice 171(1985).
14 Id., 142.
15 The Measures on the Payment of Litigation Costswas first enacted in 1989, revised on December 8, 2006 and entered into force on April 1, 2007.
16 Article 6 of the Measures on the Payment of Litigation Costs.
17 Meng Fangpeng, Funding Derivative Actions in China:Lessons from Wallersteiner v. Moir(No.2)for the Court, 31 Company Lawyer 29, 30(2010).
18 A party does not need to pay the court fees in the circumstances where he or she is eligible for judicial aid. Supra note 16, Chapter 6.
19 Supranote 16, article 10.
20 Id., article 6(3).
21 Id., article 13.
22 Id., article 15.
23 Id., article 14(1).
24 ZHAO JIMIN&WU GAOCHEN, SHAREHOLDERS'DERIVATIVE ACTIONS, at 31(Law Press, 2007).
25 LIU DONGJING, STUDY ON SHAREHOLDERS'DERIVATIVE ACTIONS IN CHINA, at 103(People's Press, 2011).
26 The attorney's fees are normally left to be decided by the plaintiffs and their lawyers. The courts thus will not interfere with this matter except in some exceptional cases. In practice, there is a tendency that the attorney's fees would be paid by the losers in the cases involving the infringement of patent, trademarks and copyright. For example, in the case of Walter Disney v. Beijing Press,the judge supported the claim that the plaintiff's attorney's fees should be compensated by the defendant. However, this practice is not applied in derivative actions and thus the attorney's fees will still be paid by each party irrespective of the result of the lawsuit.See LIU JINGJING, STUDY ON SHAREHOLDER'S DERIVATIVE ACTIONS, at 90(Ph.D. Thesis of Chinese University of Political Science and Law, 2007).
27 Wallersteiner v. Moir(No 2)[1975] 1 All ER at 849.
28 JAMES M. ZIMMERMAN, CHINA LAW DESKBOOK:A LEGAL GUIDE FOR FOREIGN-INVESTED ENTERPRISES, at 32(American Bar Association, 2005).
29 ZHANG ZHONG, THE DERIVATIVE ACTION AND GOOD CORPORATE GOVERNANCE IN CHINA, at 212(Lambert Academic Publishing, 2011).
30 Arad Reisberg, Funding Derivative Actions:A Re-examination of Costs and Fees as Incentives to Commence Litigation, 4 Journal of Corporate Law Studies 345(2004).
31 Supra note 27.
32 Wallersteiner v. Moir(No. 2)[1975] QB 373, 404.
33 Supra note 27, 871.
34 Id, 859.
35 Smith v. Croft(No. 1)[1986] 2 AII ER 551.
36 For example, Intercontinental Precious Metals Inc v. Cooke[1994] WWR 66 in Canada and Farrow v. Register of Building Societies[1991] 2 VR 589 in Australia.
37 Jaybird Group Ltd v. Greenwood[1986] BCLC 318, 327.
38 The rule first can be found in rule 12A of order 15 in the Rules of Supreme Court, and schedule 1 of the Civil Procedure Rules of1998.
39 ARAD REISBERG, DERIVATIVE ACTIONS AND CORPORATE GOVERNANCE:THEORY AND OPERATION, at 227(Oxford University Press, 2009); Carol G. Hammett, Attorney's Fees in Shareholder Derivative Suits:The Substantial Benefit Rule Re-examined, 60 California Law Review 164(1972).
40 Bosch v. Meeker Coop. Light&Power Assn, 257 Minn 362(1960).
41 Mills v:Electric Auto-Lite Co., 396 US 375(1970).
42 ZHANG ZHONG, supra note 29, 209.
43 Lang Thai, How Popular Are Statutory Derivative Actions in Australia? Comparisons with United States. Canada and New Zealand,30 Australian Business Law Review 118, 123(2002).
44 Principles of Corporate Governance:Analysis and Recommendations, Comment on Section 7.17.
45 The lodestar method was formally recognised in Mills v. Electric Auto-Lite Co 396 US 375, 392(1970), in which the US Supreme Court held that the lodestar method is based on the time the attorneys reasonably spent on their work and their applicable hours rate.However, this does not mean the attorneys can charge without any restrictions as the final figure is subject to the court's scrutiny.The court can adjust the figure considering several factors, such as the complexity of issues and the quality or the risk of representation.
46 ARAD REISBERG, supra note 39, 232.
47 Smith v. Croft(No.1)[1986] 1 WLR 597.
48 ARAD REISBERG, supra note 39, 238.
49 Turner v. Mailhot(1985)50 OR(2d)561.
50 Supra note 32, 394.
51 Id., per Lord Denning MR, 859.
52 ARAD REISBERG, supra note 39, 232.
53 JOHN E. PARKINSON, CORPORATE POWER AND RESPONSIBILITY:ISSUES IN THE THEORY OF COMPANY LAW, at 241(Clarendon Press, 1993).
54 Reisberg argues that a reward given directly to shareholders can be regarded as a form of an incentive. For example, according to section201 of the Israeli Companies Act of1999. the court has the discretion to grant part of the proceeds of a successful action to plaintiff shareholders beyond their indirect recovery. In such situation, a plaintiff shareholder can benefit directly from the litigation. This may increase the accessibility of the remedy for the potential plaintiffs as it sends a clear message to prospective shareholders that the derivative actions are strongly encouraged by legislators.See Arad Reiberg, Promoting the Use of Derivative Actions, 24 Company Lawyer 250,251(2003).
55 Smith v. Croft[1986] 1 All ER 551,565.
56 One example is Clark v. Cutland[2003] EWCA Civ 810.
57 Dan D. Prentice. Wallersteiner v. Moir:The Demise of the Rule in Foss v. Harbottle?, 40 Conveyancer 51, 59(1976).
58 Qayoumi v. Oakhouse Property Holdings plc[2003] 1 BCLC 352.
59 Wallersteiner v. Moire(No 2)[1975] QB 395 per Lord Denning.
60 ROBERT L. ROSSI, ATTORNEY'FEES, at section 2.13(Lawyers Cooperative Publishing, 2007).
61 The term private attorney generals was first coined by Judge Jerome Frank in Associated Industries of New York State, Inc. v. Ickes,13 F.2d 694, 704(2d Circle 193). Further details on this phrase, see Jeremy A. Rabkin, The Secret Life of the Private Attorney General, 61 Law&Contemporary Problems 179(1998).
62 It was set out in article 267 of the Commercial Code. See Shiro Kawashima&Susumu Sakurai, Shareholder Derivative Litigation in Japan:Law, Practice, and Suggested Re forms, 33 Stanford Journal of International Law 15(1997).
63 From 1950 to 1985, there was on average fewer than one derivative action per year in the whole of Japan. See Shiro Kawashirma&Susumu Sakurai, supranote 62, 17.
64 In 1993, there were 84 cases pending before Japanese courts. The number rose to 174 in 1996 and reached a peak with 286 cases in 1999.Although the number of new actions declined slightly from 2000 to 2009, it still maintained a previously unimaginably high average rate of 73.7 new actions filed per year. See Mark D. West. The Pricing of Shareholder Derivative Actions in Japan and the United States,88(4)Northwest University Law Review 1436(1994); MASAFUMI NAKAHIGASHI&DAN W. PUCHNIAK, LAND OF THE RISING DERIVATIVE ACTIONS:REVISITING IRRATIONALITY TO UNDERSTAND JAPAN'S UNRELUCTANT SHAREHOLDER LITIGANT, in THE DERIVATIVE ACTION IN ASIA:A COMPARATIVE AND FUNCTIONAL APPROACH, at 128-185(Dan W.Puchniak, Harald Baum&Michael Ewing-chow eds., Cambridge University Press, 2012).
65 MASAFUMI NABKAHIGASHI&DAN W. PUCHNIAK, supra note 64.
66 Tomotaka Fujita, an authority in the Japanese Corporate Law, even proclaims that this amendment was undoubtedly'one of the most influential events in the history of the Japanese corporate governance regime'. See TOMOTABKA FUJITA, TRANSFORMATION OF THE MANAGEMENT LIABILITY REGIME IN JAPAN IN THE WAKE OF THE 1993 REVISION, in TRANSFORMING CORPORATE GOVERNANCE IN EAST ASIA, at 15-35(Hideki BKanda et al. eds., Routledge, 2008).
67 It is argued that the bursting of Japan's economic bubble in the early 1990s may also partly account for the increasing number of derivative actions as the decline of the economy may decrease the transaction cost of pursuing derivative actions by making it easier to establish damages resulting from managers'wrongdoings. However, the West also artgued that the reduction of filing fees explains'much of the increase in(derivative action)filed'. See supra note 6, 351.
68 Carlos D. Vera, Arbitrating Harmony:'Med-Arb'and the Confluence of Culture and Rule of Law in the Resolution of Internatic Commercial Disputes in China, 18 Columbia Journal of Asian Law 149-194(2004).
69 BEE CHEN GOH, LAW WITHOUT LAWYERS, JUSTICE WITHOUT COURTS:ON TRADITIONAL CHINESE MEDIATIC at 1(Ashgate Publishing, 2002).
70 Urs M. Lauchli, Cross-Cultural Negotiations, with a Special Focus on ADR with the Chinese, 26 William Mitchell Law Revi1045(2000).
71 XIN REN, TRADITION OF THE LAW AND LAW OF THE TRADITION:LAW, STATE, AND SOCIAL CONTROL IN CHIN at 21(Praeger Publisher, 1997).
72 Face is similar to honour, which is defined by'one's accumulated moral and social prestige in the eyes of the cormmunity'. See HU CHANG-TU, CHINA:ITS PEOPLE, ITS SOCIETY, ITS CULTURE, at 493(HRAF Press, 1960).
73 Favour(renqing)is equivalent to personal goodwill as it relates to the imperative that one party grant a favour to another party based on the nature of their relationship. The closer the relationship is, the greater the expectation and obligation of fulfilling one's favour with the other. See Carlos D. Vera, supra note 68.
74 Mark D. West, supra note 64, 1436-1507; Tom Ginsburgh&Glenn Hoetker, The Unreluctant Litigant? An Empirical Analysis of Japan's Turn to Litigation, 35 Journal of Legal Studies 33(2006).
75 Dan W. Puchniak&Masafumi Nakahigashi, Japans Love for Derivative Actions:Irrational Behaviour and Non-Economic Motives as Rational Explanations for Shareholder Litigation, 1(45)Vanderbilt Journal of Transnational Law 1-82(2012).
76 Mark Ramseyer, The Costs of the Consensual Myth:Antitrust Enforcement and Institutional Barriers to Litigation in Japan, 94 Yale Law Journal 604-607(1985).
77 Zhu Jingwen, Quantity Analysis on the Chinese Lawsuits for the Past 30 Years, Legal Daily News, January 18, 2012.
78 Id.
79 The Judges Law of the Peoples Republic of China was first enacted in 1995 and then revised in 2001.
80 For example, a person who wants to be a judge in a High Court must have engaged in the legal work for at least three years in the cases of graduates of law major of colleges or universities or from non-law majors of colleges or universities but possessing the professional knowledge of law. See article 9 of the Judges Law of the People's Republic of China.
81 Article 12 of the Judges Law of the Peoples Republic of China.
82 Walter Hutchens, Private Securities in China:Material Disclosure about China's Legal System?, 24 University of Pennsylvania Journal of International Economic 599-689(2003).
83 FRASER J. HOWIE&CARL E. WALTER, PRIVATIZING CHINA, at 61(John Wiley&Sons(Asia)Pte Ltd., 2006).
2 KATHARINA PISTOR&XU CHENGGANG, DETERRENCE AND REGULATORY FAILURE IN EMERGING FINANCIAL MARKETS:COMPARING CHINA AND RUSSIA, WORKING PAPER, at http://www.wcfia.harvard.edu(Last visited on August23,2013).
3 Zhang Xianchu, Practical Demands to Update the Company Law,28 Hong Kong Law Journal 251,253(1998).
4 Nils Krause&Qin Chuan, An Overview of China's New Company Law, 28 Company Lawyer 316(2007).
5 Huang Hui, Shareholder Derivative Litigation in China:Empirical Findings and Comparative Analysis, 27 Banking and Finance Law Review 619(2012).
6 Mark D. West, Why Shareholders Sue:the Evidence from Japan, 30 Journal of Legal Studies 351,372(2001).
7 Lin Shaowei, Derivative Actions in China:One Step Forward, Two Steps Back, 23 International Company and Commercial Law Review 197(2012).
8 Ma Fang, The Deficiencies of Derivative Actions in China, 31 Company Lawyer 150(2010); Huang Hui, The Statutory Derivative Action in China:Critical Analysis and Recommendations for Reform, 4 Berkeley Business Law Journal 227(2007); Huang Xiao,Derivative Actions in China:Law and Practice, 6 Cambridge Student Law Review 246(2010).
9 William M. Lands, An Economic Analysis of the Courts, 14 Journal of Law and Economics 61(1971); John P. Gould, The Economics of Legal Conflicts, 2 Journal of Legal Studies 279(1973); Richard A. Posner, An, Economic Approach to Legal Procedure and Judicial Administration, 2 Journal of Legal Studies 399(1973).
10 Bradford Cornell. The Incentive to Sue:An Option Pricing Approach, 19 Journal of Legal Studies 173(1990).
11 Foss v. Harbottle(1843)2 Hare 461.
12 In the English law, the plaintiff shareholders face the risk of paying not only the legal expenses of themselves but also the legal costs incurred by the defendants owing to the loser-pays rule that costs follow the event. In the US, a plaintiff shareholder has to bear his or her own legal cost even if an action is successful. Further details of fundintg rules in these two counties will be discussed below.
13 John D. Wilson, Attorney Fees and the Decision to Commence Litigation:Analysis, Comparison and an Application to the Shareholder's Derivative Action, 5 Windsor Yearbook of Access to Justice 171(1985).
14 Id., 142.
15 The Measures on the Payment of Litigation Costswas first enacted in 1989, revised on December 8, 2006 and entered into force on April 1, 2007.
16 Article 6 of the Measures on the Payment of Litigation Costs.
17 Meng Fangpeng, Funding Derivative Actions in China:Lessons from Wallersteiner v. Moir(No.2)for the Court, 31 Company Lawyer 29, 30(2010).
18 A party does not need to pay the court fees in the circumstances where he or she is eligible for judicial aid. Supra note 16, Chapter 6.
19 Supranote 16, article 10.
20 Id., article 6(3).
21 Id., article 13.
22 Id., article 15.
23 Id., article 14(1).
24 ZHAO JIMIN&WU GAOCHEN, SHAREHOLDERS'DERIVATIVE ACTIONS, at 31(Law Press, 2007).
25 LIU DONGJING, STUDY ON SHAREHOLDERS'DERIVATIVE ACTIONS IN CHINA, at 103(People's Press, 2011).
26 The attorney's fees are normally left to be decided by the plaintiffs and their lawyers. The courts thus will not interfere with this matter except in some exceptional cases. In practice, there is a tendency that the attorney's fees would be paid by the losers in the cases involving the infringement of patent, trademarks and copyright. For example, in the case of Walter Disney v. Beijing Press,the judge supported the claim that the plaintiff's attorney's fees should be compensated by the defendant. However, this practice is not applied in derivative actions and thus the attorney's fees will still be paid by each party irrespective of the result of the lawsuit.See LIU JINGJING, STUDY ON SHAREHOLDER'S DERIVATIVE ACTIONS, at 90(Ph.D. Thesis of Chinese University of Political Science and Law, 2007).
27 Wallersteiner v. Moir(No 2)[1975] 1 All ER at 849.
28 JAMES M. ZIMMERMAN, CHINA LAW DESKBOOK:A LEGAL GUIDE FOR FOREIGN-INVESTED ENTERPRISES, at 32(American Bar Association, 2005).
29 ZHANG ZHONG, THE DERIVATIVE ACTION AND GOOD CORPORATE GOVERNANCE IN CHINA, at 212(Lambert Academic Publishing, 2011).
30 Arad Reisberg, Funding Derivative Actions:A Re-examination of Costs and Fees as Incentives to Commence Litigation, 4 Journal of Corporate Law Studies 345(2004).
31 Supra note 27.
32 Wallersteiner v. Moir(No. 2)[1975] QB 373, 404.
33 Supra note 27, 871.
34 Id, 859.
35 Smith v. Croft(No. 1)[1986] 2 AII ER 551.
36 For example, Intercontinental Precious Metals Inc v. Cooke[1994] WWR 66 in Canada and Farrow v. Register of Building Societies[1991] 2 VR 589 in Australia.
37 Jaybird Group Ltd v. Greenwood[1986] BCLC 318, 327.
38 The rule first can be found in rule 12A of order 15 in the Rules of Supreme Court, and schedule 1 of the Civil Procedure Rules of1998.
39 ARAD REISBERG, DERIVATIVE ACTIONS AND CORPORATE GOVERNANCE:THEORY AND OPERATION, at 227(Oxford University Press, 2009); Carol G. Hammett, Attorney's Fees in Shareholder Derivative Suits:The Substantial Benefit Rule Re-examined, 60 California Law Review 164(1972).
40 Bosch v. Meeker Coop. Light&Power Assn, 257 Minn 362(1960).
41 Mills v:Electric Auto-Lite Co., 396 US 375(1970).
42 ZHANG ZHONG, supra note 29, 209.
43 Lang Thai, How Popular Are Statutory Derivative Actions in Australia? Comparisons with United States. Canada and New Zealand,30 Australian Business Law Review 118, 123(2002).
44 Principles of Corporate Governance:Analysis and Recommendations, Comment on Section 7.17.
45 The lodestar method was formally recognised in Mills v. Electric Auto-Lite Co 396 US 375, 392(1970), in which the US Supreme Court held that the lodestar method is based on the time the attorneys reasonably spent on their work and their applicable hours rate.However, this does not mean the attorneys can charge without any restrictions as the final figure is subject to the court's scrutiny.The court can adjust the figure considering several factors, such as the complexity of issues and the quality or the risk of representation.
46 ARAD REISBERG, supra note 39, 232.
47 Smith v. Croft(No.1)[1986] 1 WLR 597.
48 ARAD REISBERG, supra note 39, 238.
49 Turner v. Mailhot(1985)50 OR(2d)561.
50 Supra note 32, 394.
51 Id., per Lord Denning MR, 859.
52 ARAD REISBERG, supra note 39, 232.
53 JOHN E. PARKINSON, CORPORATE POWER AND RESPONSIBILITY:ISSUES IN THE THEORY OF COMPANY LAW, at 241(Clarendon Press, 1993).
54 Reisberg argues that a reward given directly to shareholders can be regarded as a form of an incentive. For example, according to section201 of the Israeli Companies Act of1999. the court has the discretion to grant part of the proceeds of a successful action to plaintiff shareholders beyond their indirect recovery. In such situation, a plaintiff shareholder can benefit directly from the litigation. This may increase the accessibility of the remedy for the potential plaintiffs as it sends a clear message to prospective shareholders that the derivative actions are strongly encouraged by legislators.See Arad Reiberg, Promoting the Use of Derivative Actions, 24 Company Lawyer 250,251(2003).
55 Smith v. Croft[1986] 1 All ER 551,565.
56 One example is Clark v. Cutland[2003] EWCA Civ 810.
57 Dan D. Prentice. Wallersteiner v. Moir:The Demise of the Rule in Foss v. Harbottle?, 40 Conveyancer 51, 59(1976).
58 Qayoumi v. Oakhouse Property Holdings plc[2003] 1 BCLC 352.
59 Wallersteiner v. Moire(No 2)[1975] QB 395 per Lord Denning.
60 ROBERT L. ROSSI, ATTORNEY'FEES, at section 2.13(Lawyers Cooperative Publishing, 2007).
61 The term private attorney generals was first coined by Judge Jerome Frank in Associated Industries of New York State, Inc. v. Ickes,13 F.2d 694, 704(2d Circle 193). Further details on this phrase, see Jeremy A. Rabkin, The Secret Life of the Private Attorney General, 61 Law&Contemporary Problems 179(1998).
62 It was set out in article 267 of the Commercial Code. See Shiro Kawashima&Susumu Sakurai, Shareholder Derivative Litigation in Japan:Law, Practice, and Suggested Re forms, 33 Stanford Journal of International Law 15(1997).
63 From 1950 to 1985, there was on average fewer than one derivative action per year in the whole of Japan. See Shiro Kawashirma&Susumu Sakurai, supranote 62, 17.
64 In 1993, there were 84 cases pending before Japanese courts. The number rose to 174 in 1996 and reached a peak with 286 cases in 1999.Although the number of new actions declined slightly from 2000 to 2009, it still maintained a previously unimaginably high average rate of 73.7 new actions filed per year. See Mark D. West. The Pricing of Shareholder Derivative Actions in Japan and the United States,88(4)Northwest University Law Review 1436(1994); MASAFUMI NAKAHIGASHI&DAN W. PUCHNIAK, LAND OF THE RISING DERIVATIVE ACTIONS:REVISITING IRRATIONALITY TO UNDERSTAND JAPAN'S UNRELUCTANT SHAREHOLDER LITIGANT, in THE DERIVATIVE ACTION IN ASIA:A COMPARATIVE AND FUNCTIONAL APPROACH, at 128-185(Dan W.Puchniak, Harald Baum&Michael Ewing-chow eds., Cambridge University Press, 2012).
65 MASAFUMI NABKAHIGASHI&DAN W. PUCHNIAK, supra note 64.
66 Tomotaka Fujita, an authority in the Japanese Corporate Law, even proclaims that this amendment was undoubtedly'one of the most influential events in the history of the Japanese corporate governance regime'. See TOMOTABKA FUJITA, TRANSFORMATION OF THE MANAGEMENT LIABILITY REGIME IN JAPAN IN THE WAKE OF THE 1993 REVISION, in TRANSFORMING CORPORATE GOVERNANCE IN EAST ASIA, at 15-35(Hideki BKanda et al. eds., Routledge, 2008).
67 It is argued that the bursting of Japan's economic bubble in the early 1990s may also partly account for the increasing number of derivative actions as the decline of the economy may decrease the transaction cost of pursuing derivative actions by making it easier to establish damages resulting from managers'wrongdoings. However, the West also artgued that the reduction of filing fees explains'much of the increase in(derivative action)filed'. See supra note 6, 351.
68 Carlos D. Vera, Arbitrating Harmony:'Med-Arb'and the Confluence of Culture and Rule of Law in the Resolution of Internatic Commercial Disputes in China, 18 Columbia Journal of Asian Law 149-194(2004).
69 BEE CHEN GOH, LAW WITHOUT LAWYERS, JUSTICE WITHOUT COURTS:ON TRADITIONAL CHINESE MEDIATIC at 1(Ashgate Publishing, 2002).
70 Urs M. Lauchli, Cross-Cultural Negotiations, with a Special Focus on ADR with the Chinese, 26 William Mitchell Law Revi1045(2000).
71 XIN REN, TRADITION OF THE LAW AND LAW OF THE TRADITION:LAW, STATE, AND SOCIAL CONTROL IN CHIN at 21(Praeger Publisher, 1997).
72 Face is similar to honour, which is defined by'one's accumulated moral and social prestige in the eyes of the cormmunity'. See HU CHANG-TU, CHINA:ITS PEOPLE, ITS SOCIETY, ITS CULTURE, at 493(HRAF Press, 1960).
73 Favour(renqing)is equivalent to personal goodwill as it relates to the imperative that one party grant a favour to another party based on the nature of their relationship. The closer the relationship is, the greater the expectation and obligation of fulfilling one's favour with the other. See Carlos D. Vera, supra note 68.
74 Mark D. West, supra note 64, 1436-1507; Tom Ginsburgh&Glenn Hoetker, The Unreluctant Litigant? An Empirical Analysis of Japan's Turn to Litigation, 35 Journal of Legal Studies 33(2006).
75 Dan W. Puchniak&Masafumi Nakahigashi, Japans Love for Derivative Actions:Irrational Behaviour and Non-Economic Motives as Rational Explanations for Shareholder Litigation, 1(45)Vanderbilt Journal of Transnational Law 1-82(2012).
76 Mark Ramseyer, The Costs of the Consensual Myth:Antitrust Enforcement and Institutional Barriers to Litigation in Japan, 94 Yale Law Journal 604-607(1985).
77 Zhu Jingwen, Quantity Analysis on the Chinese Lawsuits for the Past 30 Years, Legal Daily News, January 18, 2012.
78 Id.
79 The Judges Law of the Peoples Republic of China was first enacted in 1995 and then revised in 2001.
80 For example, a person who wants to be a judge in a High Court must have engaged in the legal work for at least three years in the cases of graduates of law major of colleges or universities or from non-law majors of colleges or universities but possessing the professional knowledge of law. See article 9 of the Judges Law of the People's Republic of China.
81 Article 12 of the Judges Law of the Peoples Republic of China.
82 Walter Hutchens, Private Securities in China:Material Disclosure about China's Legal System?, 24 University of Pennsylvania Journal of International Economic 599-689(2003).
83 FRASER J. HOWIE&CARL E. WALTER, PRIVATIZING CHINA, at 61(John Wiley&Sons(Asia)Pte Ltd., 2006).