Research On Judicial Relief Of The Shareholders’ Right To Dividend Of The Limited Liability Company

To obtain return on investment is the fundamental purpose of shareholders investing in the company.Limited liability company’s unique characteristics of closeness and human cooperation make the dividend rights of small and medium-sized shareholders more vulnerable to infringement.Judicial intervention in corporate dividend can not only effectively protect shareholders’ dividend rights,but also improve the corporate governance system.However,the judicial relief of shareholders’ dividend right is not ideal in China.Although the "corporation law judicial interpretation IV" has made relevant provisions for the relief of shareholders’dividend rights,it is too general and has poor operability.In this paper,the empirical research method is used to analyze the related cases of shareholders’ dividend right disputes,and discuss the controversial issues,and put forward corresponding suggestions for improving the judicial relief system of shareholders’ dividend rights.The full text consists of the following parts:In the first part,the author randomly selected 100 sample cases in 2019 to sort out the current situation of disputes over shareholders’ dividend rights in judicial practice,and then selected two typical cases to show that the relevant provisions of the "corporation law judicial interpretation IV" for shareholders’ dividend rights disputes are imperfect:who should be the defendant in the litigation of shareholders’dividend rights?How to distribute the burden of proof?How to identify "abuse of shareholder rights"?How to judge the dispute of shareholders’ dividend right?Thus leads to the problems discussed in this paper.The second part summarizes the basic theory of shareholders’ dividend right.Firstly,this paper expounds the meaning of shareholders’ dividend right,which is divided into abstract dividend right and specific dividend right,and discusses their characteristics respectively.The specific dividend right has the nature of creditor’s rights,while the abstract dividend right has the nature of inherent right,expectation right and self-interest right.It is clear that this paper mainly focuses on the abstract dividend right.Then it analyzes the reasons why the shareholders’ dividend rights are easily infringed,and points out that the alienation of capital majority decision,the expansion of the application of business judgment rules,and the tendency of enterprises to avoid double taxation will hinder the exercise of shareholders’ dividend rights.The third part,on the basis of the analysis of the specific problems in judicial practice and the reasons for the infringement of shareholders’ dividend right,this paper analyzes whether the judicial intervention is justified.There are "positive" and"negative" views in the academic community.The author believes that judicial intervention in mandatory corporate dividend can correct the failure of corporate autonomy,and can also make up for the defects of other alternative relief measures.There are also limits for judicial intervention in mandatory company dividend.The judicial intervention should be modest and take the abuse of rights as the applicable premise.Only when the reasonable expectations of minority shareholders have failed and the internal remedies have been exhausted,can the judiciary intervene.In the fourth part,first combs and explains the relevant provisions on shareholders’ dividend right in the "corporation law judicial interpretation IV".Secondly,combined with 100 sample cases and two typical cases selected in the first part of this paper,it is pointed out that the relevant provisions in the "corporation law judicial interpretation IV" are not enough to solve various problems in judicial practice.Then through the introduction of the United States,the United Kingdom and the civil law system of France,the judicial relief system of shareholders’ dividend right is introduced,in order to provide reference for the improvement of the judicial relief system of shareholders’ dividend right in China.In the fifth part,the author puts forward some suggestions on the improvement of the judicial relief system of shareholders’ dividend right in China.First of all,it clarifies the status of the litigation subject,discusses how to identify the plaintiffs shareholder qualification under different circumstances,expands the scope of the defendant,and proposes that the directors and shareholders who abuse their rights can participate in the litigation as defendants.Secondly,it further refines the identification standard of abusing shareholders’ rights,and sums up several common cases of abusing shareholders’ rights,so as to provide reference for judicial adjudication.Thirdly,it improves the distribution of the burden of proof,introduces the basic theory of the burden of proof briefly,and suggests that the plaintiff shareholder should prove all the relevant facts in the shareholder dividend right litigation in principle;the judge should reduce the plaintiffs burden of proof according to the difference of the status of the parties in the company When it is difficult to judge the fact of "abusing the rights of shareholders",the court should make a prudent judgment based on the facts of the case.Finally,the specific way of judicial judgment should be made clear.The judge should make appropriate arrangements for the time limit,scope and proportion limit of the resolution distribution in the judgment.