The Dilemma And Outlet Of The Judicial Relief Of The Shareholder’s Abstract Profit Distribution Claim

Under the principle of capital majority,the direct link between the percentage of shareholding and voting rights has resulted in the resolution of major corporate matters,including the distribution of profits,being linked or even tied to the personal interests of the controlling shareholders of the company,resulting in numerous abuses of rights.The competition for interests activates the exercise of control,and in practice,minority shareholders are faced with a series of infringements such as oppression and exclusion by the controlling shareholder and the actual controller relying on capital advantages.China’s Company Law has never set up abstract dividend distribution lawsuit(also known as compulsory dividend distribution lawsuit or compulsory distribution lawsuit),until the Company Law Judicial Interpretation(IV),Article 14,Article 15 provides for two different types of profit distribution claims,especially Article 15 in the proviso affirmed the abstract dividend distribution lawsuit The lawfulness of the purpose of solving the closed company in the control of shareholders abuse the principle of capital majority,deliberately paying no or little dividends to squeeze the interests of small and medium shareholders to squeeze the interests of small and medium-sized shareholders.By taking the case study method,combing through the recent years the court invoked the “company law judicial interpretation(IV)” Article 15 for the case,comprehensive analysis of the court’s decision of the idea and the main idea,from which to see the abstract dividend distribution request right judicial remedy in the dilemma.To be specific,the judicial remedy dilemma is reflected in the courts around the handling of this type of case seems to be rusty,one is the court for the abstract dividend distribution request support rate is low;two is the court for the abstract dividend distribution rules of the conditions of application of different understanding;three is due to the legislation on the abstract dividend distribution of the specific scheme to develop the path of unclear,practice varies,appeared “The same case different judgment” phenomenon.Further investigation of the reasons,the dilemma of practice from the incomplete legislation,and then can be traced back to the lack of theoretical research.In order to solve the problems in theory and practice,to solve the abstract dividend distribution request right of judicial remedy in the dilemma,it is necessary based on judicial practice,absorb the useful results of theoretical research,put forward about the abstract dividend distribution rules applicable conditions,specific distribution mode,distribution standards,the burden of proof distribution rules and other content of the guidance,and then give the abstract dividend distribution system to the correct understanding and application of certain ideas.The path to improve the rules of abstract dividend distribution can be considered from the improvement of legislation and regulation of judicial two levels: in terms of improving the legislation,the application of the rules on the distribution of abstract profits to shareholders should be grasped from the substantive and procedural elements of the two aspects,in terms of substance,the existence of free cash to be distributed by the company is a prerequisite;the subject of distribution should include all types of shareholders who have paid up their capital;try to typify the abuse of shareholders’ rights,while examining the subjective fault of the acting shareholders and the results of damage.Procedurally,shareholders claiming redress should first exhaust the company’s internal remedies,and the court should also actively play the important value of judicial mediation when dealing with such cases.In determining “abuse of shareholders’ rights”,the principles of fiduciary duty and reasonable expectation should be used as a guide,while the general elements of abuse of rights should be judged in accordance with the Civil Code and the Interpretation of the General Provisions of the Civil Code.In terms of regulating the administration of justice,on the issue of the specific scheme of abstract profit distribution by shareholders,firstly,the court should decide whether to rule on direct distribution or to resolve first,as appropriate,according to the decision-making mechanism of the company in each case;secondly,the court should,on the basis of respecting the company’s business judgment and business development plan,judge whether to allow the company to keep a certain reserve of profits in free cash as the distribution,taking into account the company’s asset and liability structure and cash flow situation Lastly,the court should scientifically set up rules on the allocation of the burden of proof in respect of litigation procedures,and may try to expand the subjective scope of the res judicata of compulsory distribution to make it binding on other shareholders as well.