Reconfiguration Of China's Distribution System

The distribution system is an important part of the capital operation of the corporation.It is an important embodiment of the shareholders to realize the income of the assets,and is also the key link of the protection of the creditors.Although there are deviations in understanding the concept of legal capital system,the development and evolution of distribution systems all over the world are under the principle of capital maintenance,and different paths have been formed in the process of its revision and breakthrough.In the environment of China's capital system reform,academia focuses on capital contribution and ignores the reform of operation part,which will lead to uncoordinated application of corporation law.Successive amendments of Corporation Law were only minor adjustment to the distribution system.There is neither unified regulation on the distribution of profit,stock repurchase behavior,nor searching the source of its origin.The neglect of the current situation in the judicial practice makes the actual operation of the distribution system disorderly and deviates from the original intention of the creditors protection.In view of this,this paper attempts to construct from the concept of distribution rules,focuses on the specific development in distribution rules under the principle of capital maintenance,combines with the financial accounting knowledge,and reviews the existing rules under the principle of capital maintenance in the legislative theory,Judicial practice,commercial practice and other aspects of the situation.The purpose of this paper is to reconstruct the distribution system that can not only protect the creditors but also adapt to the development of the corporation.The first chapter expounds the origin of the regulation behind the distribution system and the risk burden of the subject involved,analyses the rights allocation between the shareholders and creditors and the risk that does not match the subject before the reconstruction of the distribution system.Then I analyze the rationality and necessity of the value orientation of the legislation protecting the interests of the creditors,as well as the different legal paths derived from this.These lay the foundation for the next discussion.The second chapter is based on our existing distribution rules and re-examines the mode of profit distribution,stock repurchase and covert distribution.By analyzing the legal system and combining with accounting knowledge,the distribution is redefined as the act of transferring the corporation's property to the shareholders without consideration.The actions that lead to the outflow of the corporation's property are included in the regulation in order to achieve the harmonization of legislation.The third chapter reviews the rules of distribution in China under the capital maintenance.The effects of capital maintenance are mainly to limit the distribution of profit and the repurchase and redemption of share.The first section of this chapter reviews the following three aspects:the uncoordinated legislation after the reform,the restriction of distribution that is divorced from reality,the lack of effective supervision because of the creditor's external situation.The second section makes an empirical study on the related judicial cases of repurchase and redemption.The repurchase behavior according to commercial practice is divided into different situations,and further analysis of the results based on judgment basis and reasons shows that limiting repurchase by the capital not only cause the confusion of the application of the law and do not meet the commercial activities,but also exclude the repurchase price and post repurchase behavior from the legal review.The third section,through the analysis of the cost and benefit of Law and Economics,shows that the reform is imperative.The fourth chapter is based on the perspective of comparative law and select the main countries of the United States,Britain,Germany and Japan as the representative.This chapter analyzes the different development paths and reasons of the reform of the extraterritorial distribution system.These paths are summed up into three modes of capital model,asset model and solvency test,which will provide the necessary reference for the reform of our country.The fifth chapter,on the basis of the above chapters,re-examines the concept of regulation and value orientation of the distribution system according to the actual situation of our country's development.Renewing the idea of the corporation as "the collection of property" into a "legal subject" with independent will and paying attention to the solvency of the subject and the responsibility of the directors.We should protect the interests of creditors through prior directors' statements,ex-post creditors' right of action and information disclosure system,so as to achieve win-win situation between corporation freedom and creditors protection.