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股东代表诉讼前置程序的价值在于充分尊重公司独立法人地位以及穷尽公司内部救济,但在一定情况下,也有必要豁免前置程序,以实现法律的公平。对于豁免前置程序的原因,我国仅规定了紧急情况,即不立即起诉会给公司利益造成难以弥补的损失,这一种情况。这一狭隘的规定难以适应实践的需要,已有诸多案例表明法官抛开紧急情况而豁免前置程序。因此,有必要对实践中的做法进行统一规定,引入国外的申请无益制度用于豁免前置程序。
The value of shareholder representative litigation preemptive process lies in fully respecting the status of independent legal entity of the company and exhausting the internal remedy of the company. However, under certain circumstances, it is also necessary to exempt the preemptive procedure in order to realize the fairness of the law. As for the reasons for exempting the preemptive procedures, China only stipulates an emergency situation, in which case the case of not immediately prosecuting will cause irreparable damage to the interests of the company. This narrow provision is difficult to adapt to the needs of practice. There have been many cases in which judges are exempt from preemptive procedures in spite of emergencies. Therefore, it is necessary to make uniform provisions on practices and to introduce foreign non-profit system for exempting pre-process.