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充分而适当的诉讼激励能够有效解决公司派生诉讼提起动力不足的问题。对原告的诉讼激励体现为对原告本人的激励和对原告律师的激励。当原告是善意时,可以要求公司对其诉讼费用进行补偿;在原告为公司取得实质性利益时,公司可以根据一定比例给予原告回报;在特定情形下允许股东直接受偿;将派生诉讼定性为非财产案件,法院只收取少量的诉讼费用:这些均为对原告股东的激励。有条件付费规则和或然性报酬规则是对诉讼有巨大操控能力的律师的激励机制。这些都反映了实务界和理论界对提高股东提起派生诉讼积极性的有益探索。其中最具有效果也最有争议的是或然性报酬规则,其引发的滥诉和无价值和解问题具有深入探讨的必要性。对这些规则的利弊进行比较分析后,取其精华兼收并蓄,对我国派生诉讼制度的构建将产生积极作用。
Sufficient and appropriate litigation incentives can effectively solve the problem of insufficient motivation in the derivative action of the company. The litigation incentives to the plaintiff are embodied in the incentive of the plaintiff himself and the lawyer of the plaintiff. When the plaintiff is goodwill, the company may require the company to compensate for the costs of litigation. When the plaintiff obtains material benefits for the company, the company may give a return to the plaintiff according to a certain proportion; shareholders may be directly compensated in certain circumstances; and the derivative action is defined as Non-property cases, the court only charge a small amount of litigation costs: These are incentives for the plaintiff shareholders. Conditional pay rules and contingent pay rules are incentives for lawyers who have a great deal of control over litigation. All of these reflect the useful exploration of practical and theoretical circles in raising shareholders’ initiative of derivative litigation. One of the most effective and the most controversial is the rules of contingent reward, which raise the issue of indiscriminate litigation and non-value reconciliation. After a comparative analysis of the pros and cons of these rules, taking the best of both worlds will have a positive effect on the construction of the derivative litigation system in our country.