论股东分红权

发布时间：2018-07-01 19:55

本文选题：股东分红权 + 国有公司　；参考：《华中科技大学》2010年硕士论文

【摘要】：股东分红权是公司股东众多权利的核心,同时也是股东投资公司的根本目的。股东分红权又称股东盈余分配请求权或股利分配请求权,可分为抽象的股东分红权和具体股东分红权。实现股东分红权应当具备实质性要件和形式要件。实质要件是指公司分配利润必须要有盈利,体现的是“无盈则不分”的原则;公司存在盈利并不意味着就可以分配红利,还要通过法定程序,由公司有权机关作出分红决定之后才可以分红。这即是形式要件。我国公司法规定,董事会有提出分配红利的权利,股东会是分红的决议机关,使得董事会和股东会构成相互制约的机制,体现了我国公司法所具备的优点。在我国,无论国有公司、上市公司还是一般有限责任公司都不同程度的存在不分红或少分红的现象,从而侵害了股东分红权。国有企业还在改革阶段,经过改制的大多数国有企业多年未向国家分红,大量的资金留在国有公司,从而产生了一系列问题,如内部人控制、贪污腐败等现象的发生,不利于公司的发展、致使国家和人民的财产流失、侵害债权人的利益。上市公司也存在长年不分红的情况,控股股东控制公司,损害中小股东的权利,在分红方式上现金股利分配数量和采取分配现金红利所占上市公司的比例与发育成熟的证券市场存在很大差距。对有限责任公司而言,则是大股东长期欺压中小股东,利用资本多数决原则控制公司,侵害中小股东的分红权。通过对我国公司分红现状的分析,本文认为侵害股东分红权的原因在立法层面、司法保护层面以及股东权利认识层面都存在一些问题,这些问题包括“资本多数决”原则的缺陷,持异议股东退股权实现困难,股东权利意识不强等。当股东分红权受到侵害的时候不能有效的通过司法途径进行保护股东的权利,法院碍于司法谨慎干预的原则,难以作出公正合理的裁判,甚或根本不受理股东申请强制分红之诉。本文在分析侵害股东分红权原因的基础上提出一系列法律建议。建议修改现行公司法相关立法,完善股东退股权的股价确定机制,借鉴美国司法判例中综合运用市场价值、财产价值和收益价值的方法,从而合理公正地确定退股股价。建议将我国《公司法》第75条规定的退股年限由五年改为三年,或是仅仅规定最高年限,强制将退股条件写进公司章程,充分保护股东分红权。保护股东知情权,完善信息披露制度,是保护股东分红权的前提。我们应该重视公司会计制度,加大违反公司会计制度的处罚力度,加强股东的知情权保护和公司决议不分红时的信息披露义务。本文建议建立股东申请强制分红诉讼制度,分析了强制分红之诉的合理、合法性和必要性。但是申请强制分红之诉不是没有条件的,本文认为成就股东申请强制分红之诉必须同时符合穷尽公司内部救济原则、异议股东明确表示反对分红决议以及必须是公司在符合分红的条件下,而做出不分配红利或少分配红利的决议。若公司已经做出分配红利,而怠于行使分配的时候,可以视为申请强制分红之诉的条件已经成熟,股东可以选择提出债的诉讼或是强制分红之诉。针对国有公司在我国特殊的法律地位,本文提出了要完善出资人股权直接诉讼制度和国有资本经营预算制度。至于具体的制度设计,本文没有展开讨论,是本文研究的不到之处,也是今后应当研究的一个重点。另外,结合刘俊海教授的观点还提出在国有参股公司中国有股应当界定为无表决权的优先股。国有股界定为优先股更有利于公司在分配红利决议时实现公司长期和短期利益的平衡,与现行《公司法》相接轨,并可节约国家行使股东权的成本。保护股东分红权,必须强化违反分红制度的责任。股东违法取得红利必须返还,但是也要保护善意股东取得的红利。判断股东是否善意取得红利,必须要符合主体和主观方面两个条件。主体必须是中小股东,而主观方面必须是基于善意取得。要建立大股东损害赔偿责任机制。大股东以及控股股东利用“资本多数决”原则、故意规避退股条件或是违法分红的,应当承担相应的赔偿责任。
[Abstract]:The shareholder bonus right is the core of many rights of the shareholders of the company, and it is also the fundamental purpose of the shareholders' investment company. The shareholder bonus right is also called the claim of the shareholder's earnings distribution or the dividend distribution claim, which can be divided into the abstract shareholder bonus right and the specific shareholder bonus right. The essential element is that the company's distribution of profit must be profitable, reflecting the principle of "no profit is not divided"; the company's profit does not mean that it can allocate the dividend, but the company has the authority to make a dividend decision after the company has the authority to make a dividend decision. This is the form of the form. Our company law stipulates that the board of directors has the points put forward. With the right of bonus, the shareholders will be the resolution organ of the dividend, which makes the board of directors and the shareholders meet the mechanism of mutual restriction, which embodies the advantages of the company law of our country.
In our country, no matter the state-owned companies, the listed companies or the general limited liability companies have the phenomenon of the existence of different degrees of dividends or less dividends, and thus infringes the dividend rights of the shareholders. The state-owned enterprises are still in the stage of reform, and most of the state-owned enterprises that have been reformed have not been red to the state for many years, and a large amount of funds have been left in the state-owned companies. A series of problems, such as the insider control, corruption and corruption, are not conducive to the development of the company, the loss of the property of the country and the people and the interests of the creditors. The listed companies also have long years of lack of dividends. The controlling shareholders control the company, damage the rights of the East and the small shares, and the amount of cash dividend distribution and the dividend distribution. There is a big gap between the proportion of the listed companies taking the share of cash dividend and the mature securities market. For the limited liability company, it is the long term bullying the small and medium shareholders by the large shareholders, controlling the company by the majority of the capital, and violating the dividend rights of the small and medium shareholders. There are some problems in the legislative level, the level of judicial protection and the understanding of shareholders' rights. These problems include the defects of the principle of "capital majority", the difficulty of realizing the dissenting shareholders' return to equity and the lack of awareness of shareholders' rights. In the way of protecting the rights of shareholders, the court is hindering the principle of prudent intervention by the judiciary, and it is difficult to make a fair and reasonable judgment, or even do not accept the claim of a shareholder to apply for compulsory dividends.
This paper puts forward a series of legal suggestions on the basis of analyzing the reasons for the infringement of shareholders' dividend rights. It is suggested that the relevant legislation of the current company law should be amended to perfect the stock price determination mechanism of the shareholder's equity withdrawal right, and the method of comprehensive use of market value, property value and income value in the judicial precedents of the United States is used for the rational and fair determination of the stock return share price. It is a prerequisite for the protection of the shareholder's right to share the rights of the shareholders. We should attach importance to the accounting system of the company. It is a prerequisite for the protection of the shareholders' rights to share the right to know and the system of information disclosure. We should pay more attention to the accounting system of the company. We should pay more attention to the accounting system of the company. We should pay more attention to the accounting system of the company and increase the accounting system of the company. We should pay more attention to the accounting system of the seventy-fifth companies. The penalties for violating the company's accounting system are to strengthen the protection of shareholders' right to know and the obligation to disclose information when the company decides not to pay dividends.
This paper recommends the establishment of a shareholder application for compulsory dividends litigation, and analyzes the rationality, legitimacy and necessity of the compulsory dividend claim. However, the application for compulsory dividends is not unconditional. This article holds that the appeal of the achievement shareholders to apply for compulsory dividends must conformed to the internal relief principle of the exhaustive company, and the dissenting shareholders clearly express the opposition dividend. The resolution and the resolution must be made under the condition that the company is in conformity with the dividend, and does not allocate the dividend or the dividend of the dividend. If the company has already made a dividend and is slack for the exercise of the distribution, it can be regarded as the condition of applying for compulsory dividends. The state owned company has a special legal status in our country. This article puts forward to perfect the direct litigation system and the management budget system of the state-owned capital. As for the specific system design, this article has not been discussed. It is not the point of this study, but also a key point to be studied in the future. In addition, the point of view is also combined with Professor Liu Junhai's viewpoint. It is proposed that the shares in China's state-owned shares should be defined as the preferred stock without the right to vote. The definition of the preferred stock of the state-owned shares is more conducive to the company's balance of long-term and short-term interests of the company when the dividend is allocated. It is in line with the current "company law" and saves the state's cost of exercising its shareholders' rights.
To protect the dividend rights of shareholders, it is necessary to strengthen the responsibility of violating the dividend system. Shareholders must return the dividend in violation of the law, but also protect the dividends obtained by the bona fide shareholders. To judge whether the shareholders acquire the bonus in good faith, it must conform to the two conditions of the subject and the subjective. The subject must be small and medium shareholders, and the subjective aspect must be based on good faith. In order to establish the liability mechanism for damages of the large shareholders, the large shareholders and the controlling shareholders should take the corresponding liability for the use of the principle of "capital majority" and deliberately evade the conditions for withdrawal or illegal dividends.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D922.291.91

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