Research On The Judicial Protection Of The Claim For Surplus Distribution Of Shareholders

With the economic development of our country,the agent problem between shareholders has became more and more obvious.Especially in the context of domestic companies have incomplete inner governance structure,the protection to little shareholder is fatal.The paper intends to explain the article 14,article 15 of the <Provisions of the Supreme People's Court on Several Issues Relating to Application of the Company Law of the People's Republic of China(IV)>,and to clarify the boundary of the judicial intervention of assignment of company by combining the specific situations summarized from cases.The law is to regulate the behavior of the shareholders who exist in the distribution of the company to abuse their rights and harm the interests of the company and other shareholders.Based on the empirical analysis method for sample analysis,specific arguments which conditions belongs to the abuse of the right conditions,and draw lessons from Anglo-American law system in cases of experience summed up on the issue of judicial interpretation in the company law,article 15(4)of the applicable elements.In clear the right infringement,on the basis of specific situation,the author also in the ways of dispute court specific intervention as the division standard,clear according to different degree of infringement court should provide what kind of relief,detailed discusses the court needs identified in the specific situation of points and the allocation of burden of proof,hope to provide guidance for the parties related to suit.On the basis of clarifying the specific situation of infringement of rights,the author want to set a standard for the court to apply the article 15,through discussing facts and the distribution of burden of proof in the specific situation,then clarifying what kind of relief the court should provide for those victims.This article is divided into four parts,the first part combed the laws and regulations and the provisions of the company for dividend distribution,determining the legal basis of this kind of dispute;At the same time,through the way of sample analysis describes the current problems existing in the judicial practice,has been clear about the article will exist in practice of specific controversial type as the breakthrough point to further clear the essence of judicial intervention of surplus distribution,summing up the common of a disputed point lies in the existing shareholders' abuse of rights.The second part discusses the necessity and theoretical basis of the regulation on the abuse of rights by shareholders.Before the judicial interpretation of "company law"(iv),the court basically held a conservative attitude to the issue of the right to claim the profit of the shareholders.In practice,the court did not distinguish between the specific circumstances of the case,and generalized the distribution of surplus of the company to the scope of corporate autonomy,thus resulting in the litigation that could not achieve the effect of dispute resolution.After the judicial interpretation of "company law"(iv),it shall,on the basis of article 15,be entitled to intervene in the surplus distribution of the company and protect the interests of shareholders.It is not only the need to deal with the real disputes,but also provides theoretical basis for the court to intervene in the profit distribution of the company in theory,including the principle of equity equality,reasonable expectation principle and the fiduciary duty of controlling shareholders.In the third part,the degree of intervention of the author's court is to summarize the specific type of infringement to the type of infringement of the case in the case of the dispute of the second part under the standard of the company.Corporate resolution flaw type specific include: the unreasonable restriction type distribution of shareholder qualification,unreasonable change ratio of share out bonus infringing copyright,unreasonable executives high-paying disguised dividends infringement,low-priced sale between mother and child company assets,excessive share out bonus infringing copyright.This type infringes shareholders' rights mainly through unfair procedures or illegal voting rights.Distribution company deadlock type including companies do not do the dividend infringement and excessive extraction of aleatoric accumulation fund type,shareholder in cases of this type cannot through the company's internal way solve the problem of share bonus,so ask the courts to be relieved by compulsory means.The fourth part corresponds to the specific,specific tortious conditions of the third part of the law that has brought the judicial intervention into the dividend distribution.According to the provisions of the court should be under the premise of respect the company autonomy,to grasp the case whether there is a big shareholders abuses the rights and interests of the company,especially for companies malicious to conceal the truth,and small and medium-sized shareholders in a relatively weak position,the court case burden of proof should be reasonably assigned protect the rights of shareholders for relief.For the infringement of the flaw of the resolution,the court only needs to provide relief in the form of denying the validity of the resolution,and the court should force the company to make a distribution resolution within a certain period of time in order to remedy the interests of the shareholders.