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Research On The Claim Right Of Earnings Distribution In Chinese Companies

Posted on:2021-05-22Degree:MasterType:Thesis
Country:ChinaCandidate:Y Y ZhouFull Text:PDF
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The right of shareholders to obtain the distribution of corporate earnings is an important part of equity.The claim on compulsory earnings distribution arises from the need for interest balance and the independence of the basis of claims.The claim on compulsory earnings distribution is stipulated by 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(IV),which provides the legal resource for judicial breakthrough in corporate autonomy.Based on the practice of Article 15 of above law,it is expected that the disadvantages can be concluded,foreign experience can be referenced and solutions can be proposed in this dissertation.In the introduction part,the problems to be studied are proposed.Through the literature review,the viewpoints of predecessors at home and abroad are summarized.Then the research methods are listed as the comparative method,jurisprudence analysis and empirical analysis.Also,the research roadmap of this dissertation is showed.In the first part,the theoretical basis and legitimacy are firstly discussed.Firstly,there exists the need for the balance of the company's internal interests,and the interest conflicts cannot be completely balanced only by the contract and the market.Secondly,it is necessary to individualize the basis of claim right.Then,the limitation of the right of the claim on compulsory earnings distribution is approached.The judicial activism under the restriction of judicial restraint is right for judges to intervene in the company autonomy.In the second part,the legislative and judicial situation of the claim on the compulsory earnings distribution are presented.After analyzing the legal provisions briefly,quantities of data and statistics concerning the judgments and the decisions are showed and analyzed.It is concluded that problems are about distribution agreements,abuse of shareholder rights,the burden of proof and the risk of abusing complaints.In the third part,theoretical analysis concerning the problems found in the second part is explored.Firstly,discrepancy on contractual freedom between the contract law and the group law leads to invalid distribution agreements.Secondly,the conclusion on abusing of rights is not drawn yet.Thirdly,the burden of proof is deeply influenced by business judgment rules,which is too strict for the minority shareholders.Fourthly,the risk of abuse of the determination of the abuse of the right should be avoided.In the fourth part,the solutions need more experience to reference by learning from legislation and practice abroad.Some shareholder agreements are admitted to manage the company in Canadian company law,which shows the limitation of contractual freedom in the company law.The principle of reasonable expectation in the unfair damage system in the UK introduces a kind of burden of proof concerning shareholders.The three-step test established in Wilkes case of the United States tests the proportionality of commercial purposes and means of conduct.German and Japanese shareholders' right of inquiry and American shareholders' right of proposal provide powerful internal remedy for shareholders.In the fifth part,on the basis of the above practice summary and theoretical analysis,combined with the experience outside the region,suggestions on the improvement of the claim on compulsory earnings distribution are proposed.Solutions include organizing relief in advance in the articles of association,clarifying giving play to the relief function of the constitution in advance,clarifying the connotation of the abuse of shareholder rights,allocating the burden of proof reasonably,and strengthening the internal relief.
Keywords/Search Tags:Claim on compulsory earnings distribution, Abuse of shareholder rights, Reasonable expectations, Burden of proof
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