| According to the Interpretation of the Supreme People’s Court on the Application of the Company Law of the People’s Republic of China on Several Issues(Ⅳ),the plaintiff shareholders shall prove that the company has held a shareholders’ meeting on how to distribute the profits and provide a specific profit distribution plan,otherwise they will face the adverse consequences of being rejected.The judicial explanation of"only the shareholders’ committee resolution" the referee didn’t have standard and unified guiding ideology related cases the effect of judicial judgment,on the contrary,on the distribution of a limited liability company shareholders agreement case presents the following problems:(1)about the shareholder agreement can apply to a limited liability company distribution differentiation,the referee court for shareholders agreement will as the company distributes according to hold different points of view;(2)There are differences in the legal basis for supporting the application of shareholders’ agreement to the distribution of limited liability companies.Some courts refer to the "Company Law" and treat the shareholders’ agreement as a document with the effect of the resolution of the shareholders’ meeting,while some courts mainly emphasize the authenticity and consistency of the intention reflected in the agreement and then make judgments.(3)As for the determination of the legal effect of the special provisions in the shareholders’ distribution agreement,different courts have different opinions on the consequences of the fixed distribution terms agreed in the shareholders’agreement,the failure to make up for losses and the withdrawal of statutory accumulation fund.The problems presented in judicial practice reflect the urgency of exploring whether and how to apply the shareholder agreement in the distribution of limited liability companies.As for whether the shareholder agreement can be applied to the distribution of limited liability companies,this paper holds that the application of the shareholder agreement has the theoretical basis,the judicial practice basis and the legal basis.In terms of theoretical basis,the corporate contract theory argues that the company is a collection of different contract bundles,which provides theoretical support for the applicability of the shareholder distribution agreement.Under the theory of private law autonomy,the close relationship between shareholder autonomy and company autonomy makes the applicability of shareholder distribution agreement theoretically necessary.In addition,the nature of the limited liability company and the characteristics of the company’s earnings distribution also provide theoretical support.In terms of judicial practice,the company law and its judicial interpretation of the protection of the rights and interests of shareholders is not comprehensive,and the practice of the limited liability company shareholders agreement assignment,applicability for the distribution agreement of shareholders can provide the reality of soil,at the same time,the judicial interpretation issued and no prompting companies involved in shareholder agreement get unification allocation of disputes related to the referee,court support for shareholders agreement still exist.In terms of legal basis,the Company Law’s special provisions on "distribution proportion" and "through the way of profit distribution plan"provide legal basis and support for the applicability of shareholder distribution agreement.As for the identification of the legal effect of the special provisions of the shareholders’ agreement,it should be considered in combination with whether the relevant provisions belong to the mandatory provisions on the effectiveness of the Company Law.A s for the determination of the fixed distribution clause,the agreement of the fixed distribution amount(proportion)reflects the agreement of all shareholders on the distribution proportion,which is legitimate;The stipulation that some shareholders shall bear joint and several compensation obligation for the company’s losses is a disposition behavior of shareholders giving up the right to shelter of the company with priority liability,and does not damage the interests of the company and its creditors,and is not illegal.As for the determination of the provisions on making up losses and drawing statutory accumulation fund that are not agreed upon,it should be seen that the provisions in the Company Law are mandatory provisions of management and have no force,and the agreement will not be invalid because of the violation of the provisions.The court should distinguish whether the shareholder distribution agreement is actually performed.As for the specific application of shareholders’ agreement in the distribution of limited liability companies,this paper believes that the applicable shareholders’agreement should meet the basic form and content conditions by combining the relevant provisions of the Company Law and referring to the relevant standards of the resolution of the shareholders’ meeting.In terms of formal conditions,the distribution agreement of the shareholders involved in the lawsuit should be the latest arrangement of the shareholders of the limited liability company on how to distribute the shareholders,and meet the requirements of "all members" and "written" in signing.In terms of content,determine should be clear about the amount of distributable profits,can refer to allocate time related judicial interpretation on the shareholders’ committee resolution indicate the distribution rules and processing time,prompt as the referee assigned on the basis of the shareholder agreement with specificity and operability,maintain judicial tolerance in the first place.In a word,the application of shareholders’ agreement in the distribution of limited liability companies has theoretical and legal basis,and can give full play to the characteristics of flexibility,privacy and convenience of shareholders’ agreement,and meet the flexible governance needs of limited liability companies as far as possible.At the same time,the specific application of the shareholder distribution agreement should be scientifically analyzed in combination with the relevant provisions of the Company Law,so as to avoid denying its effectiveness totally. |
