A Typology Reasearch On Disputes Over Abstract Dividend Distribution

The mandatory dividend distribution established by the article 15 of the Provison of Supreme People’s Court on Several Issues Concerning the Application of the Company Law(Ⅳ)has a transformative significance for the claim for the abstract dividend distribution of the minority shareholders.Analysis on the cases which occur since the Forth Judicial Interpretation of Company Law enacted discovers that the number of disputes over abstract dividend is rising gradually.However,the attitudes of the courts in the lawsuits of abstract dividend distribution of the shareholders is still conservative so the wining rate of shareholders is a bit low.In the conceptual level,there are divergent views of courts on the standards of administration of justice intervening into company autonomy,even there are contradictory decisions made by the Supreme People’s Court.In practice,there are some problems such as no same standard of decision for abuse of the rights of shareholders,unreasonable distribution of proof-providing,the burden of proof-providing of plaintiff dose not conform to their actual position.The difficulty of proving the abuse of the rights of shareholders and the surplus amount that can be distributed hampers the realization of the system of compulsory surplus distribution.The property and range of the liability of shareholders who abuse their rights is rarely discussed.Court can implement the compulsory dividend distribution but shall grasp the condition of application not restricted to the three conditions of judicial interpretation.When confirming the amount of dividend amount that can be distributed,the balance of interests of the distribution of proof-providing and company,shareholders,external creditors shall be paid more attention.The fiduciary duty of the shareholders or the actual controllers who abuse their rights is the base of taking the responsibility,but it is not joint liability.When the judge decides a case he/she shall differentiate conditions and determine the quality and range of liability which shall be argued in detail so that the accurate law can be applied and the persuasion of decision can be strengthened.