On The Judicial Relief Of The Claim Of Profit Distribution By The Shareholders Of A Limited Company

Judicial Interpretation IV of the Company Law stipulates that when there is when there is an effective resolution of the board of shareholders or the general meeting of shareholders that specifies the specific distribution plan,the shareholders' right of claiming for profit distribution changes from abstract to specific,and the claim of profit distribution can be converted into the creditors' rights of shareholders to the company,which can be sued.Therefore,when the rights of shareholders are not realized,the people's court shall decide that the company shall distribute profits to shareholders in accordance with the distribution plan set forth in the resolution.However,the basic attitude towards the abstract right of claiming for profit distribution is that there is no remedy,and only a proviso is left.Not only the remedy is very limited,but also the conditions are extremely harsh.Under the current legal framework,the judicial remedy of the shareholders' right of claiming for abstract profit distribution is very weak.In judicial practice,more and more cases are suing the company for profit distribution,so the protection of the shareholders' right of claiming for abstract profit distribution is increasingly urgent.The existing internal remedy measures within the company fail to protect shareholders' right of claiming for abstract profit distribution.Moreover,the external remedy measures from legislation and administration have no effective plan for this problem.Judicial remedy is a more feasible plan at present.However,under the theory of company autonomy,the judicial organ's involvement in the company's internal management lacks legitimacy.In fact,judicial remedy is a decision made by the judicial organ on behalf of the company on profit distribution and how to distribute or not to distribute,which originally belongs to the scope of business decision-making of the company.But on the other hand,company autonomy is not the only principle,which is still restricted by the general principles of civil law.When company autonomy fails,the judicial organ intervenes in company management and makes business decisions for the company,which is a supplement to company autonomy.Shareholders' right of claiming for abstract profit distribution belongs to expectant right.It is an incomplete and developing right,but it should still be protected by law,and no one can infringe it at will,which provides a theoretical basis for the justiciability of expectant right.What's more,the characteristics of judicial remedy itself also show that judicial intervention in the company's internal management can only affect its operation and development to the minimum extent,which is an ideal way to solve the internal disputes of the company.Judicial remedy involves the intervention of judicial organ in the internal management of the company.Therefore,the conditions should be set for judicial remedy in order to minimize the impact on the operation and development of the company.First of all,it should be clear that this right of the obligee is damaged.Second,the obligee have tried out all the internal remedy measures and they don't work.Only when the above conditions are achieved at the same time can the judicial organ intervene,and it participates in the settlement of disputes as the neutral third party.At the same time,in order to limit the scope of judicial intervention,the judicial organ should not only abide by the articles of association and shareholders' agreement,but also operate within both negative and positive limits,which means not only actively solving the problem,but also not damaging the independence of the company's decision-making as much as possible.In addition,there are still some practical problems that will hinder the right remedy in judicial practice.If these problems cannot be properly solved,it will greatly affect the effect of judicial remedy.Therefore,in view of the difficulties in practice,the author also puts forward corresponding solutions.The author explores the path of judicial remedy,which mainly includes improving the existing litigation system,helping the obligees better realize their rights,discussing how to determine the amount of profit distribution in judicial practice,improving the procedural rules of litigation,and promoting the realization of compulsory profit distribution litigation.Finally,this thesis is from the author's limited point of view and the argumentation may be inadequate.Concerning the issue of shareholders' right to abstract profit distribution,the author puts forward solutions and looks forward to forming a consensus as soon as possible.Then it can guide the judicial practice and the damaged rights will be realized.can guide the judicial practice and the damaged rights will be realized.