A Study On Improving The Protection System Of Shareholders' Right Of Claim For Dividend Distribution

Dividend is an important form of shareholders'access to investment income. The right of claim for dividend distribution is a kind of property right enjoyed by shareholders on the basis of their personal status, which is divided into the specific right of claim for dividend distribution and the abstract right of claim for dividend distribution. It is the company that regulates and determines the dividend distribution, but more often than not, major shareholders take advantage of their dominant position in the company to abuse their rights and manipulate the dividend distribution, under which circumstances minor shareholders get the short end of the stick. Therefore, the minor shareholders'right of claim for dividend distribution shall be in particular protected. The specific right of claim for dividend distribution has often smacked of the nature of creditor's rights, so shareholders may directly make an appeal to the court to get their rights protected. However, the abstract right of claim for dividend distribution, unlike the specific one, has to go through numerous twists and turns before it gets directly, properly and fully protected. In light of this, the focus of this thesis is placed on the abstract right of claim for dividend distribution.The Company Law of the People's Republic of China has many provisions for protecting the right of claim for dividend distribution, including but not limited to provisions for dissenting shareholders'claim for equity repurchase, equity transfer, ineffectiveness of the resolution of shareholders'meeting, appeal for revocability, appeal for company dissolution, claim for compensations against shareholders in breach of the duty of good faith, etc., which are indirect and restricted relief yet without the access to the root of the problem concerned. Therefore, we need to seek a new solution. The appeal for coercive dividend distribution in western countries, like America, England and France, is relatively mature in theory and practice and is feasible for the protection of shareholders'right of claim for dividend distribution and punishment on any infringement in this respect. We do have something to learn from this. The appeal for coercive dividend distribution is granted a sufficient theoretical basis, including but not limited to the theory of rational expectation coming to nothing, theory of shareholders'duty of good faith, theory of forbidden abuse of rights, theory of company autonomous boundary, theory of forbidden lawmaking by the referee and judge, etc.; on the other hand, dividend distribution, after all, is the internal affairs of the company and is the act of business judgment by the company. The appeal for coercive dividend distribution in essence is judiciary intervention into company autonomous affairs and in fact replaces the business judgment with judiciary judgment, which actually causes some damages to the principle of company autonomy and shall be accordingly controlled within a reasonable scope so that the relationship between judiciary intervention and company autonomy may be properly maintained. The appeal for coercive dividend distribution shall abide by the following principles, i.e. cautious intervention into business judgment, exhaustion of internal relief, formal examination first and substantive examination second. Only when these principles are fully complied with could the appeal for coercive dividend distribution be well balanced between judiciary intervention and company autonomy.Based on the research into the appeal for coercive dividend distribution in western countries like America, England and France, this thesis puts forward a scheme of appeal for coercive dividend distribution in China and further the analysis on prerequisites of appeal for coercive dividend distribution, the claimant and respondent for coercive dividend distribution, the burden of proof concerning the appeal for coercive dividend distribution and content and effect of the judgment of the appeal for coercive dividend distribution, etc.