On The Judicial Relief Of The Shareholder's Claim Right To Abstract Dividend Distribution Of Limited Liability Company

The most important performance of asset income is the dividend that the company distributes to shareholder according to the profitability of the company in the normal course of operation.In limited company,the controlling shareholders are more inclined to retain the earnings in the company because they can obtain more than their share of interests by means of remuneration and in-service consumption.However,dividend distribution process is the only way for minority shareholders to obtain interests,so they are more inclined to use dividend distribution.The diversification of social relationships between shareholders in limited company makes it hard for law to formulate unified internal governance standards in advance.In addition,the lack of external supervision mechanism such as stock market and control market and the difficulty of shareholder's withdrawal from the company makes it easier for controlling shareholders to manipulate the company's distribution policy by using capital majority decision to realize their own interests,while ignoring the reasonable expectations of minority shareholder to obtain dividends.This paper justifies the necessity and rationality of judicial intervention in the dividend distribution from two aspects of supplementing the lack of company autonomy and improving the company's operating efficiency.By studying the relevant legislation and judicial practice in foreign countries,and comparing fiduciary duty of controlling shareholder and reasonable expectations of shareholder,this article proposes to perfect compulsory litigation of dividend distribution on the theoretical basis of the latter,and at the same time provides the exit channel for shareholders when the trust foundation is lost.This article is divided into three parts:introduction,body and conclusion.The body is divided into four chapters.The first chapter introduces the basic theory of shareholder's claim on dividend distribution,Firstly,from the perspective of accounting,this article defines the differences among profit,surplus and dividend,and demonstrates that the title of the claim for dividend distribution is more appropriate than the claim for profit distribution.Different from the specific claim of dividend distribution,the abstract claim of dividend distribution faces the coordination of judicial intervention and company autonomy.Secondly,considering the diversification of shareholder's income in limited company,it is more appropriate to determine the company distribution from the point of view of substance.Finally,from the characteristics of the limited company,this article analyzes the reasons for the judicial infringement of minority shareholder's claim right of abstract dividend distribution.The second chapter analyzes the current situation of the protection of shareholder's claim right of abstract dividend distribution.Due to the lack of contract culture,the limited rationality of shareholder,the model article of association and the high transaction cost,it is difficult to protect shareholder's right of dividend distribution through prior arrangement.Although there are remedies in the Corporation Act of People's Republic of China,the judicial practice shows that the remedies are not appropriate or sufficient.Through the empirical study of compulsory litigation of dividends distribution,this paper presents the dispute occurrence environment and settlement process from the three dimensions of company characteristics,shareholder status and litigation procedure,and at the same time investigates judges'understanding of shareholder abuse of rights and burden of proof distribution in individual cases.The third chapter expounds the legitimacy of judicial intervention in the abstract dividend distribution of the company.This paper justifies the necessity and rationality of judicial Intervention in the dividend distribution from two aspects of supplementing the lack of company autonomy and improving the company's operating efficiency.This article introduces the protection of the shareholder's right to dividend in common law countries,including the unfair prejudice litigation in the United Kingdom and the reasonable expectations theory in the United States.Compared with public company,both of them have carried out more in-depth judicial review on the dividend distribution decision of closed company,taking the reasonable expectations of minority shareholders as the criterion to judge the suppression of shareholder,and providing a variety of remedies with different intensity,such as require the company to distribute dividends,buy out shares and dissolve the company.The article compares the theoretical basis of judicial intervention,namely the duty of good faith of controlling shareholders and the reasonable expectations of minority shareholders,and concludes that the latter can better satisfy the demand of the economic structure and governance characteristics of limited company for judicial ex post facto relief.The fourth chapter puts forward some suggestions to perfect the judicial remedies of shareholder's claim right of abstract dividend distribution.On the one hand,taking the principle of reasonable expectations as the theoretical basis,protecting equity and promoting company governance as the purpose,this article elaborates compulsory litigation of dividends distribution from the premise,situation,degree,litigation subject and burden of proof distribution of judicial intervention.On the other hand,it is necessary to provide exit channels for minority shareholders who may continue to be suppressed due to the loss of compatibility basis,It is worth noting that the above measures will have a huge impact on the company's capital and even eliminate the main body of the company,so the conditions for application should be strict.