On The Judicial Intervention Of The Company's Surplus Distribution Disputes Under No Distribution Plan

The purpose of shareholders,company’s investors,is to obtain capital gain,especially for small shareholders,whose main form of gains is dividends.However,the inconsistency in the pursuit of the interests of controlling shareholders and small and medium shareholders often results in conflict of interest,which gives rise to company’s surplus distribution disputes.The Judicial Interpretation of the Company Law(Ⅳ)was implemented on September 1st,2017.Article 14 and Article 15 stipulate the treatment of surpluses distribution disputes that have distribution schemes and no distribution schemes respectively.However,different from the former,the legal relationship of surplus distribution disputes without them is more complicated.It is not sufficient to solve the problems during judgement with only one judicial interpretation.Due to limited capabilities,the research object of this paper is limited to the issue of the judicial intervention of surplus distribution disputes in the case of non-distribution schemes in limited liability companies.This thesis adopts case study and comparative analysis.Firstly,by organizing and analyzing the related cases,it finds out the problems existing in the current judicial process in solving surplus distribution disputes with no distribution schemes.Secondly,it studies the justification of the judicial intervention in the company’s surplus distribution and clarifies its feasibility.Thirdly,it analyzes the extra-territorial systems to provide some ideas for the resolution of issues in our country.At last,it tries to put forward some suggestions for the judicial intervention in the surplus distribution disputes with no distribution schemes.This thesis consists of three parts:In the first part,it screens out the needed surplus distribution dispute cases with no distribution schemes in China,and observes them macroscopically from the perspectives of year,trial level,and result.Then,it typologically analyzes the reason of judicature’s positive involvement and negative evasion of the surplus distribution disputes,and finds that there is no clear trial thought and uniform standard.From the phenomenon to the essence,the reason for this situation lies in the lack of judging criteria and the specific path of judicial intervention.In the second part,it studies that due to the inherent requirements of company law,the heterogeneity of limited liability companies,and the limitations of business judgment rules,the judicial intervention in surplus distribution disputes is justified.UK intervenes in the principle of Unfair Prejudice Remedies,and the US in the principle of Reasonable Expectation.Both of them could adopt equity repurchases and company dissolution,and could distribute the surplus mandatorily.France and Germany relieve shareholders in the principle of the prohibition of abuse of rights.All of these provide us some reference to establish the criteria and paths of judicial intervention.The last part puts forward some proposals for judicial intervention in the surplus distribution disputes with no distribution schemes.I.Judicial intervention should follow the principles of reasonable intervention,prohibition of abuse of rights,and prudential adjudication.Ⅱ.We should use the rational expectation theory to define the abuse of shareholders’ rights and clarify the criteria for judicial intervention.Ⅲ.In the specific path,the burden of proof is premised on the principle of¨“those who advocates gives evidence".However,when to determine the amount of distributable surplus,the minority shareholders’ burden should be reduced,and professional organizations’ opinion should be fully referred.And the form of judgement should be expressed as a resolution deciding the company to distribute the surplus,and certain restrictions should be imposed on the content of the resolution.