On The Application Of Proviso Clause In Article 15 Of Judicial Interpretation Of Company Law(?)

The shareholder's right of claim for profit distribution is a kind of self beneficial property right owned by the shareholder as a shareholder.Whether the shareholders' right of claim for profit distribution can be realized depends not only on whether the company has surplus,but also on the company's intention to make dividend.As the scope of corporate autonomy,the shareholders should respect the business judgment of executives.However,in the process of practice,the controlling shareholders often abuse the rights of shareholders,resulting in some shareholders can not get the dividend distribution by not holding the shareholders' meeting,not discussing the dividend matters,symbolic dividend,some shareholders' private distribution and so on.At this time,the autonomy of the company has failed,and shareholders can only resort to the power of justice.However,when I collect and look up the cases,I find that the current judicial application rules of shareholders' right to claim for profit distribution are not perfect,and there are problems in many places.Although in the current legal system of our country,Article 15 of "Company Law > judicial interpretation(?)" has regulated the claim of abstract profit distribution in the form of proviso,and established the lawsuit of compulsory distribution of abstract profit distribution.However,after searching the abstract profit lawsuit,the author found that in fact,in the process of judicialadjudication,the court still has some problems,such as low application proportion and unclear application rules.Therefore,the author analyzes the above problems step by step and explores how to better apply the proviso clause in Article 15 of the fourth judicial interpretation of the company law under the existing system rules.In the first chapter,the author makes a general analysis of the claim right of abstract profit distribution.First of all,it explains the definition of the claim right of abstract profit distribution and the application of the proviso clause in Article 15 of the company law judicial interpretation((?).Secondly,it analyzes the logic of the proviso clause in Article 15 from the perspective of corporate autonomy and corporate justice.In the end,the article demonstrates and analyzes the application standard of proviso clause with the explanation of text meaning.In the second chapter,the author collects the cases of shareholders' claim for profit distribution by empirical analysis.And the case of shareholders' request for abstract profit distribution is analyzed emphatically,and a list of considerations for the application of proviso clause of Article 15 is obtained.After that,through the analysis of the list of factors to be considered,the author finds that there are some problems,such as the court has not reached a consensus on how to apply the proviso clause of Article 15 of the company law judicial interpretation(IV),the court has not reached a consensus on how to determine the "abuse of shareholders' rights",and the court has not yet reached a specific standard on how to judge and distribute Abstract earnings.In the third chapter,the author puts forward his own suggestions and views on the problems existing in the judicial application of the proviso clause in Article 15 of the company law judicial interpretation((?).First of all,the author puts forward his own suggestions on how to clarify the review factors of the court in the judicial judgment,and then defines the abuse of shareholder's rights in the proviso,and proposes to comprehensively judge the abuse of shareholder's rights by introducing the principle of reasonable expectation and defining the abuse of shareholder's rights.Finally,the author suggests that the specific amount of dividend should be determined by referring to the provisions of listed companies on dividend,respecting the provisions of the articles of association on dividend and the non resolved profit distribution agreement,adjusting the amount of dividend through judicial mediation,and reasonably introducing a third-party audit institution into the judgment.