Study On The System Of The Shareholder's Right To Dividends

The topic of this thesis is around the problem, which is about perfecting the system of the shareholder's right to dividends, and the scope of discussion is limited to a joint stock limited company. Chronically, the shareholder's right to dividends has not been paid great attention to, it is a very common phenomena that a joint stock limited company has not distributed for many years or only distributed symbolically. Chinese current Company Law lacks of direct and effective remedy way for the shareholder's right to dividends. The loss of legislation system has led shareholders (especially minority shareholders) to seek judicial remedy very difficultly. Based on these, how to perfect the system of the shareholder's right to dividends and ensure the return on investment of shareholders, it has become a realistic subject in company law.This thesis demonstrates the legitimacy of limited judicial intervention under the guidance of the value idea of the full respect for company autonomy, and then deduces basic ideas of perfecting the system of the shareholder's right to dividends. Concretely speaking, basing on the protection situation of shareholder's right to dividends, focusing on the provisions of the current Company Law, referring to the advanced legislation examples of extra-territorial countries, the system of the shareholder's right to dividends should be perfected at the levels of the achievements and remedy of rights. The perfection of the system of the shareholder's right to dividends at the level of the achievements of rights, should focus on the essence of the problem of dividend distribution and the interests balance of the various parties, and construct distribution standards (namely the achievement conditions of shareholders' rights to dividends ) that accord with the practical demands and are propitious to obtain investment return for shareholders; the remedy afterwards should focus on the diversity and operability of the relief means for the injured shareholder's right to dividends. The remedy system of the shareholder's right to dividends should be constructed from the angle of direction and indirection. The direct remedy is implemented through the introduction of the system to compel distribution of dividends; the indirect remedy is implemented through perfectiing the liability system of illegal distribution.This thesis consists of four parts altogether.In part one, we interpret the shareholder's right to dividends. Firstly, we define the meaning of the shareholder's right to dividends and then make a thorough analysis of the rights attributes. The shareholder's right to dividends shows different rights attributes at levels of abstract and concrete, that is, abstract shareholders' rights to dividends belongs to expectant right and concrete shareholders' rights to dividends belongs to credit right. Finally, we demonstrate the legitimacy basis of shareholders' rights to dividends protection, namely abstract shareholders' rights to dividends belongs to expectant right and the controlling shareholders should assume fiduciary duty to the minority shareholders, at the same time which also provide theoretical premise for later thesis which will introduce the system to compel distribution of dividends and responsibility investigation of the controlling shareholders.In part two, we mainly discuss the achievement conditions of the shareholder's right to dividends and make a detailed analysis from essential condition to formal condition, and then draw a conclusion: the system of the shareholder's right to dividends should be constructed from the level of the achievement of right, which is suitable especially for our country that is inclined to the legal logic and legal practice of the continental law system.Fistly, we discuss theoretically the essential achievement condition (namely distribution standard) of shareholders' rights to dividends. From the perspective of comparative law, the author cardings two typical legislative mode which construct distribution standard, that is, the United States mode focusing on the company's liquidity and the civil law system mode focusing on the statutory capital, and then reviews deeply the distribution standard of our country's Company Law,combining with the advantage and disadvantage of above legislative mode, and draws a conclusion: construction of the distribution standard must start from the angle of interests balance and focus on the company's solvency rather than changes of formal capital.Secondly, we analyze the formal achievement condition of the shareholder's right to dividends, mainly discuss the question of the ownership of the decisive rights to dividends. The author analyzes the factors that affect the ownership of the decisive rights to dividends from the perspective of corporate governance and then comments on the choice of chinese Company Law, and draw a conclusion: it can not ensure the realization of shareholders'investment income to endow formally general meeting of shareholders with the decisive rights to dividends, and the most crucial question is to improve the remedy system of shareholders' rights to dividends.In part three, from the perspective of comparative law, we mainly discuss the more mature systems which protect the shareholder's right to dividends in the extra-territoria, and analyze emphatically their system value and applicable conditions in order to provide achieving route for the fourth part, which will construct the remedy system afterwards of the shareholder's right to dividends.Firstly, we analyze system value of the agreements system between shareholders. Based on the logic that is "people can legislate for themselves ", the author identifies with making arrangements about related issues through the contract (agreement), which is favorable for playing an active role of company autonomy and resolving dispute to a certain level, but because of the limitation of the language and information asymmetry and others factors, the role of the agreements system between shareholders are doomed to be limited.Secondly, we discuss the fiduciary duty system of the controlling shareholders. Starting with analyzing the legal basis of the fiduciary duty of the controlling shareholders, the author delves into the value and functions of the system. Based on the logical relations between obligation and liability, the foremost value of the fiduciary duty system of the controlling shareholders is that the system can provide the injured individual with a basis of claim right used to seek judicial remedy; another important function is that the system is regarded as a standard whether the extraction proportion of arbitrary surplus accumulation fund is reasonable, which provides the applicable conditions of the system to compel distribution of dividends with the quantifiable standard.Finally, we discuss the meaning and function of the system to compel distribution dividends. The system compared to other remedy systems is the most direct relief mechanism for the minority shareholders. In order to overcome "majority tyranny" problem that is endogenous in company autonomy, limited judicial intervention is necessary, certainly such intervention must be rational and prudent. The purpose of the mandatory dividends distribution is not to occupy the space of company autonomy, but to guide judicial intervention, and correct imbalance between interests by the company parties'spontaneous action to maintain their private interests.In part four, based on China's national conditions, we make recommendations to perfect the system of the shareholder's right to dividends from the perspective of reality and feasibility. This section focuses on remedy afterwards, and constructs the remedy system of shareholders' rights to dividends at levels of directness and indirection.Firstly, we introduce the system to compel distribution of dividends in order to provide the minority shareholders with the most direct judicial remedy way. The system to compel distribution of dividends is essentially a kind of involvement to the company autonomy, therefore the applicable scope of the system to compel distribution of dividends should not too wide, from another angle, namely should establish a stricter tenable conditions for the shareholders' rights to mandatory dividends. This article constructs four tenable conditions of the system to compel distribution of dividends from the angle of benefit balance, which contain the premise conditions, the objective conditions, the subjective conditions as well as the procedure conditions. lastly we propose implementation scheme for the procedural problems of the system to compel distribution of dividends.Secondly, we perfect the liability system of illegal distribution in order to put pressure on the acts of the directors and the controlling shareholders, which can protect the minority shareholders' rights to dividends at the level of indirect. China's current Company Law has not stipulated the liability of illegal distribution in a form of special provisions. This section mainly discusses the liabilities of illegal distribution of the shareholders and the directors, and further clarifies the liability subject, the liability form, the principle of imputation and the grounds for exemption, which make up for the lack of legislation.