Research On Compulsory Surplus Distribution Litigation Of Limited Liability Companies

The right of surplus distribution request is the most basic and core rights of shareholders,which could be divided into specific right and abstract right.Both the theoretical community and practice recognize that the shareholders can file a lawsuit against the specific right,but whether the shareholders can file a lawsuit against the abstract right is highly controversial.Surplus distribution is the autonomous content of a company,Judicial intervention is generally prohibited.However,in practice,it is not uncommon for the major shareholder and the controlling shareholder to abuse their rights to control the company to share no or less surplus.A lawsuit in which the court blindly does not support the plaintiff's claim to distribute surplus may be contrary to corporate justice.The proviso clause of Article 15 of Judicial Interpretation IV of Company Law,which came into effect on September 1,2017,affirms the lawsuit system of compulsory surplus distribution,which can correct the injustice caused by the imbalance of corporate governance and remedy the shortcomings of the existing remedies,such as affirming the invalidity of shareholders' meeting resolutions,withdrawing shareholders' meeting resolutions,repurchasing shareholders' shares,judicial dissolution of companies,etc.Also it can ensure that the legislative concepts of company law and tort liability law are consistent.However,the provisions of the law are relatively crude,and judges of the court have different opinions on related issues.In the judicial practice,there are a large number of phenomena of "different judgments in the same case." Through the analysis and summary of relevant cases.At present,the success rate of plaintiff is low,the reasons for court decisions are various,judicial interpretation IV of company law is not widely used for adjudication.whether the appeals of transferred shareholders,anonymous shareholders and defective shareholders of capital contribution are supported or not exists controversy.The litigation status of the shareholders who abused their rights are disputed,the abuse of shareholder's rights is vague,the surplus amount is determined in different ways,and the plaintiff's burden of proof is too heavy are all problems encountered in the judgment.In response to the above problems,in order to increase the operability of the proviso clause of article 15 in judicial interpretation IV of company law,and to achieve the "same case with the same judgment".Based on the relevant foreignadvanced experience,putting forward some suggestions on perfecting the compulsory surplus distribution litigation system.The review of plaintiff's petition should distinguish the plaintiff's shareholder identity,The shareholders who abuse their rights should act as co-defendants with the company,but the shareholders who abuse their rights are not the subjects of earnings distribution.We should distinguish the parties in procedural law from those in substantive law.The abuse of shareholder's rights is various.We should distinguish the reasonable behavior of shareholders from the abuse of shareholder's rights.As for the amount of the company's allowable surplus,it can be learned by the way that the plaintiff shareholder exercises the right to know and entrusts a third-party neutral institution to audit.If other cases are involved,it should be known from another case.From the perspective of fairness and reasonableness,the burden of proof between the plaintiff and the defendant should be balanced,so that the company should bears a certain burden of proof so that the company can provide evidences that are not available to small and medium-sized shareholders,so as to help identify the case and protect the rights and interests of minority shareholders.