Research On The Claim Right Of Abstract Earnings Distribution Of Small And Medium Shareholders In Limited Liability Company

As an important part of this right,the abstract right of claim for surplus distribution is also an important right of shareholders.However,in judicial practice,the right of claim for abstract surplus distribution is confronted with many disputes and can’t even be protected effectively,which is not conducive to the incentive of shareholders’ investment enthusiasm and the construction of good business environment.Facing the above situation,our country’s legislation and the judicature have been seeking the relief channel,especially "the Corporation Law Judicial Interpretation(IV)" promulgates,has the epoch-making significance,initiates our country abstract surplus distribution the lawsuit.However,at present,the abstract surplus distribution right of shareholders can not be fully protected,and their rights and interests are still inevitably violated by the outside world.In this case,the relief of the abstract surplus distribution right of the minority shareholders in the limited liability company of our country is put forward higher request.From the perspective of ownership structure,small and medium shareholders are shareholders who hold less than 50% of shares.The so-called "abstract surplus distribution right" refers to the inherent right of shareholders to obtain the company’s profit distribution according to their status as shareholders.Based on this right,shareholders can put forward profit distribution to the company,and it is also an inherent right of shareholders.It is also an abstract and uncertain right.If the company does not make an effective profit distribution decision,then the right to claim for the abstract surplus distribution is only a right of expectation.From this point of view,based on the nature and characteristics of minority shareholders in a limited liability company,we can see that the voting rights of minority shareholders in the company are greatly limited.Faced with this unfair phenomenon,it is necessary to study the right of claim for abstract surplus distribution of small and medium shareholders in limited liability companies,and it also plays an important role in creating a good business environment,alleviating the negative effects brought by the principle of capital majority,thus promoting the fairness and justice of companies.British,American and German researches on the right of claim for abstract surplus distribution have the advantages that our research has not: the research started early,the research degree is deep and the rules are complete.In order to protect the right of claim for abstract surplus distribution of small and medium shareholders,Britain,America,Germany and other countries have established their own legal system to protect the right of claim for abstract surplus distribution.The most common remedy in Britain is the order to buy shares.Ex ante contract arrangement system is an ex ante defense means of the United States,and its most commonly used ex post relief measures for the company surplus distribution system.The relief methods in Germany are dissolution of the company,shareholder withdrawal system.In the process of establishing and perfecting our country’s legal system,we should pay attention to the system difference between different countries,base on our country’s national conditions,select the essence and discard the dross,and learn from the overseas excellent experience reasonably.Article 15 of the Judicial Interpretation of the Company Law(IV)stipulates the right of claim for the distribution of abstract surplus for the first time in China,which provides a basis for small and medium shareholders whose rights have been infringed to file a lawsuit for the right of claim for the distribution of abstract surplus at the legal level.Selected from the China Judgments Website and the PKU Magic Treasure Database,cases involving disputes over the distribution of corporate surplus that are judged from January 1,2011 to December 31,2021,and by using empirical analysis,through charts and data,it is concluded that the number of cases involving disputes over the distribution of corporate surplus in China is increasing year by year,and the proportion of cases losing is very high.At the same time,it analyzes the changes of the judgment after the promulgation of the Company Law Judicial Interpretation(IV),that is,the lawsuit of abstract surplus distribution right of claim is changed from company autonomy to judicial intervention.The main problems are as follows: at the legal level,the application rules are not perfect;the defensive protection in advance,such as the articles of association of the company and the agreement of the company,the principle of capital majority is used by the major shareholders and alienation occurs;and the relevant alternative relief measures are limited after the infringement of rights,such as the claim of dissenting shareholders for repurchase and the action of rescission of resolution.In the trial practice of our country,we try to put forward five concrete suggestions on the problems faced by the abstract surplus distribution right of the small and medium shareholders of the limited liability company of our country.First,we should improve the rules for the application of law by interpreting Article 20 of the Company Law as a general relief clause suppressed by shareholders,and clearly interpreting Article 7 "Specific Documents and Materials" of the Judicial Interpretation IV as original accounting vouchers.What is more important is to clarify the relevant provisions on the litigation of compulsory surplus distribution,firstly,to clarify the applicable conditions,that is,the company shall have surplus available for distribution,and at the same time,to identify the abuse of rights by shareholders;secondly,to balance the burden of proof of the parties concerned,and reduce the burden of proof of small and medium shareholders;finally,to clarify the corresponding guarantee system provided by the plaintiff,and impose restrictions on the litigation of compulsory surplus distribution,so as to prevent undesirable consequences caused by disconnection.Secondly,advance defensive protection measures shall be improved to give play to the pre-defense role of articles of association and shareholder agreements.The third is to limit the abuse of the majority rule of capital.Fourthly,improve the alternative relief measures,improve the provisions on the mechanism of the dissenting shareholders requesting the company to buy back the equity and the resolution revocation action,and play the due role of the alternative relief measures.