The Judicial Relief On The Request Of Dividend Distribution

As one of the most extensive and efficient form of economic organization，Thecompany collect resources, diversificate risk, it spans kinship, geopolitical, make anew global network of economic,to provide a good carrier for capital to chaseprofits. But as a fiction, its pursuit to maximize the company’s interests rather thanto maximize the interests of individual shareholders.As a special law,it regulates theCompanies’ specific matters" from birth to death ", it act as a balance between theinterests of all parties, it respect for the interests of major shareholders, protect theinterests of creditors, safeguarding the legitimate rights and interests of the minorityshareholders, but also ready to escort for the company’s long-term and stabledevelopment and the interests of all parties.But hidden inside the company’s pursuiting profit,is the investor’s right todistribute, so as an inherent power, the right of persuiting dividend is veryimportant.But various stakeholders’ dividend preferences are not the same, so it iseasy to produce a variety of conflicts between the profit, such as large shareholdersare more willing to retain the profit to expand the company or for a long-termdevelopment, the creditors hope to retained profits to protect their claims can be fullrealized while the minority shareholders expect to receive timely income, any of thestakeholders’ behavior in over-pursuing the interests may damage other’s interests,now the “majority capital rule "principle still occupy the leading premise, obviouslyit is easy for the major shareholders or controlling shareholders to manipulate thecompany’s profit distribution through the way of voting.which easily lead to theminority shareholder’s rights being trampled upon, the situation in the long term willin turn lead to the company’s future financing difficulties,which will affect thecompany’s long-term development and stability and unity.When comes to China’s legislation, the2005Company law provides a lot ofmethod to protect the interests of minority shareholders, like the transfer of shares, repurchases the dissenting shareholders’ equity, shareholder’s derivativelitigation,even the dissolution of the company, but are not reasonable, there areseries of drawbacks like not economy, the operability is not strong. Many dividendregulatory policy has now been launched only in listed companies, in fact, manyregulations are also fit for atresia company and Co., Ltd. When comes to the Judicialpoint of view, because our company law only gives some relief method to specificdividend claims, the Court often follows the "business judgment" principle, not toaccepted or rejected the prosecution request by abstract dividend rights, whichmakes the small shareholders helpless while rights being jeopardized.Throughout the world’s existing laws and jurisprudence, the British has law ofunfair prejudice provisions; U.S. law also directly provides for the mandatorydistribution of dividends regime, which is very mature and has great reference value,so in this article I hope through judicial case and its verdict i can found missing atour legislation and judicature, also I think about the feasibility of sue of mandatoryallocation dividend, and from that point of view of judicial decisions, severaljudicial intervention in dividend distribution are given, hoping to help subjectsresearch by theorists,also fill defects of judicial decisions, and make a modestcontribution to the protection of vulnerable groups of interests of minorityshareholders and other interests as well as norms of corporate governance.This article is divided into five parts, the first cut from two actual judicial case,on the issue of dividend distribution, the judiciary and even the theoretical circleshave completely different attitude, different courts may have completely differentverdict;following by depth analysis of the legal claims for distribution of profits,thencome to this article’s main points, namely: Under the premise of following the ruleof prudent to interfere with the business judgment, the court may reasonablelyintervent the company’s profit distribution;in the meanwhile,using a series oftheories as a strong support: theory of the shareholders’ right of reasonableexpectations, Corporate autonomy restrictions theory, and the theory of the balanceof interests, combined with a number of practical judgment proposed profit distribution judicial intervention measures in Part V, including pre-procedure and therules of judicial,at the same time gives some recommendations. The last partconcludes the paper.