Study On The Judicial Relief Of The Abstract Dividend Rights

The purpose of investment is to obtain investment income,and the main way to achieve this goal is earnings distribution.However,in our company practice,the infringement of shareholders' right of dividend distribution has become an effective means to control shareholders to suppress and exclude small and medium-sized shareholders.Judicial intervention is needed based on the principle of corporate justice.The Judicial Interpretation of Company Law(IV)have established the litigation of forced dividends distribution to protect the abstract dividend rights of shareholder.However,in the specific judicial practice,there are many confusions.This paper uses empirical research method,through investigating the judicial cases of litigation of forced dividends distribution,analyzes the main problems in practice,and puts forward relevant improvement suggestions,which are divided into five parts:In the first part,introduces the situation of judicial relief of the abstract dividend rights,and points out the main problems and their causes in practice.Due to the unclear provisions of the The Judicial Interpretation of Company Law(IV)and the lack of judicial experience,there are obstacles to the application of the litigation of forced dividends distribution.The specific issues include the "abuse of shareholder rights" specific circumstances,the pre-procedure setting,the defendant's subject does not recognize.In addition,due to the lack of understanding of the relationship between corporate autonomy and corporate justice principles,and the deviation of the nature of judicial corrections in practice,it leads to excessive interference in judicial activities.In the second part,analyzes the specific problems that arise in the application of the litigation of forced dividends distribution.First of all,the paper analyzes the specific situation of“abuse of shareholder rights”and believes that it should not be limited to the literal meaning of Article 15 of the The Judicial Interpretation of Company Law(IV),that is,satisfying the three conditions:the non-specific dividends plan,shareholders abuse their rights and the company didn't distribute dividends.Instead,we should examine in essence whether the abuse of shareholder rights exists.And sort out the specific circumstances that the court has confirmed in judicial practice.Secondly,analyze the relevant procedural issues in thelitigation,and analyze the question of the necessity of setting up,the essential of pre-procedure,whether the company is the sole defendant and the plaintiff's burden of proof is too heavy.In the third part,analyses the boundary of judicial intervention.Firstly,the nature of judicial intervention in corporate autonomy is analyzed.It is considered that procedural supervision is the norm of judicial intervention and substantive intervention is the norm.Then,by analyzing the specific amount of surplus allocated by the court in judicial practice,it is found that most of the courts intervene substantially,regardless of whether the distribution scheme is in the best interests of the company,and distribute all the existing surplus to shareholders in accordance with the order and proportion prescribed by law,which may cause damage to the autonomy of the company.In the fourth part,puts forward some suggestions on the judicial relief of the abstract dividend rights.On the one hand,it establishes substantive judgment criteria,introduces the principle of reasonable expectation,and takes the frustration of reasonable expectation of shareholders as the general principle of intervention.At the same time,it summarizes the situation of "abuse of shareholders' rights" to provide reference for judicial adjudication.On the other hand,the relevant procedural rules should be improved,preposition procedures should be set up and the criteria for judging should be clearly defined;the scope of the defendant should be enlarged,and the controlling shareholders and directors who abuse their rights should be the joint defendants;the burden of proof should be balanced,and the plaintiff should only bear the full burden of proof for his shareholder status and exhausted internal remedies,and after providing surface evidence for other fact,the burden of proof should be transferred to the defendant.Besides,clarify the principles and boundaries of judicial intervention in dividends distribution,that is,to follow the principle of priority of corporate autonomy;when judicial intervention should give priority to procedural supervision,that is,to order the company to hold shareholders meetings within a time limit;and when procedural supervision is insufficient,to give substantive intervention to different degrees according to the specific circumstances,to order the company to hold shareholders meetings in a time limit and makes minimum requirements on the proportion of dividends,or directly orders the company to pay specific dividends to the plaintiff shareholders.