Research On Legal Relief Of The Claims Of Abstract Surplus Distribution

The company's surplus distribution belongs to the company's autonomy.In principle,the judicial power should remain modest and must not interfere with company autonomy.However,in order to protect the rights and interests of minority shareholders,Article 15 of the Provisions of the Supreme People 's Court on Several Issues Concerning the Application of the Company Law of the People 's Republic of China(hereinafter referred to as “Company Law Interpretation IV”)provides the judicial Intervening in the company's earnings distribution leaves room.Shareholders abuse their rights,resulting in the company not distributing profits and damaging the rights and interests of other shareholders.Even if the company has not yet made an effective profit distribution resolution,other shareholders have the right to sue the court directly to request the company to distribute the surplus and seek legal relief.However,this article only stipulates whether the court accepts abstract surplus distribution disputes,and does not specify the method and specific rules of judicial intervention,resulting in many problems in the application of theory and practice.First of all,this article focuses on 119 abstract surplus distribution dispute cases after the implementation of "Company Law Interpretation 4",and puts forward the legal remedy premise of the abstract surplus claim right and the main problems in the content of legal remedies.Secondly,analyze and solve the problems existing in thelegal relief premise of the abstract surplus claim.The legal remedy for the abstract surplus distribution request right needs to meet three prerequisites: First,the company has a distributable surplus.If the court decides that the company pays a specific amount of surplus,or if the plaintiff disputes the company 's total surplus,then it must make a determination of the company 's distributable surplus.The court may determine the company's surplus amount based on the audit report issued by the specialized agency.The second is that the company has not made a surplus distribution resolution.When the company's resolution has not been made,the expectation right can only be converted into specific claims by legal relief.The third is the existence of abuse of shareholder rights and damages.The boundaries of judicial interference in the company's earnings distribution need to meet the two requirements of shareholder abuse of rights and damage to results.The definition of abuse of shareholder rights is not yet clear.The author believes that it is possible to introduce the criterion of "primarily based on reasonable expectations and supplemented by fiduciary duties".The determination of the result of damage is based on the loss of shareholders 'expectation rights to the distribution of earnings,without requiring shareholders to have actual losses.Finally,it analyzes and solves the problems in the content of legal remedies for abstract surplus claims.The content of legal remedies for abstract surplus distribution right includes damages in substantive law and special rules in procedural law.In terms of damage compensation,the author believes that if the company 's shareholders and others abuse their rights and the company does not distribute the surplus and damages the interests of other shareholders,it should bear the responsibility of compensation;the scope of compensation includes the distribution of surplus and interest.In terms of procedural rules,the author believes that the burden of proof between the plaintiff and the defendant should be appropriately adjusted to reduce the burden of proof of the plaintiff 's shareholders;the court should make a judgment to allocate specific surplus when the plaintiff 's shareholders win;the effective judgment has no prejudgment against the shareholders outside the case.