The Empirical Research On The Judicial Application Of The Shareholders Rights Abusing Clause

The key role of corporation law is balancing the relationship between different subjects and protecting their interests.Along with the development of modern enterprise system,corporations begin to lay emphasis on the undertaking of the social responsibility instead of the benefit maximization.Corresponding to this process,corporation law has changed,too.Comparing with the shareholder benefit-oriented law at first,modern corporation law starts to emphasize the protection of the minority shareholders' benefit in the internal relationship and emphasize the protection of creditors' benefit in the external relationship.The most representative thing to reflect this variation is the establishment and improvement of the regime which can prohibit the abuse of shareholders' rights.The principle content of prohibiting the abuse of shareholders' rights is reflected in Article 20(1)(2)in Corporate Law of the People's Republic of China(hereinafter referred to as Corporate Law),and it can be called “the shareholders rights abusing clause”.Comparing with Article 20(3)which stipulates the disregard of corporate personality,the shareholders rights abusing clause is less concerned.This is the background why this thesis chooses paragraph one and paragraph two of chapter twenty in Corporate Law,namely the shareholders rights abusing clause as research object.In this research,this thesis analyzes the abuse of shareholders' rights clause in civil procedure by empirical approach to draw more attention on this clause and to make a bit of contribution to the improvement of Corporate Law.Empirical research and theory were combined in this thesis.The judicial application of shareholders rights abusing clause was first arranged by empirical way in the first part.This part of research mainly included the arrangement and analysis of related cases and judicative papers which apply by the shareholders rights abusing clause.The thesis also summarized and gave an explanation to the statistics rules and characteristics of the judicial application of this clause.The thesis choose the civil judgment papers from January 1,2014 to December 31,2016 based on China Judgements Online whose judgments were based on shareholders rights abusing clause.Through classified statistic,the area distribution,judicial procedure,judicial grade and litigation structure of the samples were analyzed.The statistical characteristics of the samples were also described.Some situations in which shareholders rights abusing clause was not applied suitably were discovered.These unsuitable situations were obvious in cases which were about “invalid corporate resolution caused by contrary to law” “possessing or disposing corporate property” or applicating shareholders rights abusing clause alone.So the thesis emphatically analyzed these three situations combined with theories such as “shareholder” “shareholders rights abusing” and “equity clause”.The conclusion,judicial application of shareholders rights abusing clause should be given more attention on concrete cognizance in China,was draw based on the equity characteristic of shareholders rights abusing clause finally.At the same time,the empirical cases studied in this research were all categorized and 7 typical shareholders rights abusing behaviors were obtained.The characteristics and referee points of the 7 typical cases were analyzed and reasonable suggestions were put forward.