| The rights of the shareholders of the company include various forms,and the right to distribute surplus is one of the important rights.The main purpose of the shareholders’ investment in the company is to obtain income,which shows that the realization of surplus distribution rights is closely related to the immediate interests of shareholders.In internal corporate governance,controlling shareholders use their absolute share of shareholdings to control capital majority decisions in resolutions of shareholders,thereby achieving the goal of not allocating or distributing profits.This kind of behavior seriously damages the legitimate interests of small and medium shareholders.The domestic theory about the company’s earnings distribution is inconsistent with the viewpoint of the practice community.The vast majority of viewpoints believe that thecompany’s surplus distribution belongs to the internal affairs of the company and that it applies the rules of business judgment and public power must be very cautious in intervening.The current domestic company law and its related laws and regulations provide a variety of means for protecting the rights and interests of small and medium shareholders.However,these methods are biased towards the form of indirect protection,and the protection is obviously insufficient.In August 2017,the Supreme Court issued the "Company Law(Judicial Interpretation 4)".In the article,a supplementary provision was provided for the company’s claim for surplus distribution rights,which clarified that,under certain conditions,if the shareholders’ meeting of the limited liability company’s shareholders did not submit the surplus allocation,it may also file a claim for distribution of surplus.The formulation and adoption of these provisions reflect the concern and protection of the interests of small and medium shareholders in the legislature,but there are many problems and gaps in the applicable basic principles,the burden of proof,and the standard for the amount of surplus distribution.This paper aims to put forward suggestions for improving and perfecting the problems and gaps in the judicial intervention of the company’s surplus distribution through the analysis and analysis of the theory of the right to claim surplus distribution and judicial practice.Judicial intervention in the company’s earnings distribution disputesis whether it is necessary to uphold the principle of corporate autonomy first,or should adhere to the principles of corporate autonomy and fairness and justice? A large number of judicial practices show that the distribution of the burden of proof on the company’s earnings distribution complaint is unreasonable.Due to the asymmetry of information,the principle of "who claims and who gives evidence" will make the plaintiff bear too much burden of proof in the litigation,which is not conducive to the fair and just conduct of the litigation.It will also have a great influence on the outcome of the final referee.Does it require a more reasonable allocation of the original defendant’s evidence? If the plaintiff’s small and medium shareholder wins the suit in the company’s earnings distribution,whether the court should specify the amount of the specific surplus in the judgment.If it is the court that determines the amount of surplus distribution,which amount should be determined? This article is divided into three parts to discuss these issues:The first part mainly analyzes the theoretical basis of the claim of surplus distribution.First of all,through the combing and analysis of typical cases,it is found that the filing of claims for surplus distribution still needs to be proved,and then the necessity of the abstract surplus allocation is explored from two perspectives.Second,it is proposed that the principle of company autonomy should be changed in the judicial practice of company’s surplus distribution,and the basic principle offairness and justice should be taken into consideration in the company’s autonomy.The second part mainly elaborates on the substantive requirements of the complaint on surplus distribution.Cases lead to the problems exposed by the failure of small and medium shareholders to file a profit distribution because the physical conditions do not possess,and then analyze the substantive requirements that should be met for filing a profit distribution.The third part mainly discusses the procedural requirements for the appeal of surplus distribution.First of all,from the judicial case,the issue of the original defendant for compulsion of the distribution of forced surplus was analyzed,and then the subject identities required for the suitability of the plaintiff were analyzed,and how the controlling shareholder and the director of the company participated in the litigation.Secondly,through the case,the problems in the allocation of burden of proof and the determination of the amount of surplus distribution are elicited by abstracting the distribution of surplus surplus,and then the system design method to solve the problem is discussed. |
