论小股东利润分配之诉

发布时间：2018-11-14 11:24

【摘要】：投资获得收益是股东最为重要的权利。小股东利润分配之诉是保护小股东利益的重要保障,避免大股东或者董事会滥用权利给小股东造成预期利益的损害,也是法律保持最低限度干预的必然选择。构建小股东利润分配之诉既有正当性,又有必要性,且切实可行。本文分为三部分：引言、正文与结论,运用了经济学上的比较优势理论与比较分析方法。引言部分指出,小股东利润分配之诉的核心问题是股利分割之诉。通过梳理国内外研究资料发现需要解决的问题有正当性与诉讼制度的对应关系,小股东利润分配之诉适用条件的具体判断要素、全面的规则设计以及该诉的独立价值等。第一章主要论证利润分配之诉的正当性与独立价值。小股东利润分配之诉是法律保持最低限度干预原则的体现。解决这些冲突应当遵循股东平等原则、禁止权利滥用原则与激励小股东投资原则,尤其是后两个原则对根本不分配利润的行为有重要的适用价值。小股东利润分配之诉具有独立价值,能够克服决议瑕疵之诉与董事信义之诉的在适用范围上的局限性,也能够终局性的、以最少的诉讼资源最大化地解决纠纷。第二章主要阐述小股东利润分配之诉应当满足的三个条件。第一,公司长期不分配可分配利润。长期不分配利润应当考虑公司章程规定的利润分配周期、公司处于何种发展阶段,公司确定的重大经营计划是否完成,公司持续盈利的时间与持续盈利数额,公司在一定盈利期间内的分配次数与比例等。第二,大股东或董事会滥用权利。判断滥用应当综合考虑表决权的行使程序、股东行使表决权的目的、表决权行使的综合结果等。第三,小股东利益受到侵害。股东利益遭受的损害实际上是预期利润的损失,损失与滥用权利的行为之间具有因果性。这三个方面表明公司不分配当期利润是典型的侵权行为。第三章主要说明设计诉讼规则时需要充分考虑的内容。诉讼的原告是处于弱势的小股东,被告是公司。根据比较优势原理,持续不分配利润、可分配利润、公司重大经营计划的执行情况、公司在连续期间内的利润分配比例与次数、利润分配方案与决议表决程序等事实的证明应当由公司来完成,表决权行使目的非法、表决权形式结果非法、侵害直接性与因果性等事实应当由小股东自己证明。抗辩事由是公司不承担损害责任的正当理由,主要集中在经营自由与司法适度干预的平衡上。法院裁判应当采取有限制的分配判决,可以在赋予董事会或股东会充分协商以实现自治的权利的基础上直接以公允标准确定分配比例,实现小股东提起诉讼的目的。结论部分建议在《公司法司法解释四》(草案)第24条的基础上完善判断条件与主体资格,明确证明责任、抗辩事由与法院裁判范围等事项。
[Abstract]:Income from investment is the most important right of shareholders. The action of profit distribution of minority shareholders is an important safeguard to protect the interests of minority shareholders, and it is also the inevitable choice of the minimum intervention of law to avoid the harm of the expected interests caused by the abuse of rights by large shareholders or the board of directors. It is both legitimate and necessary to construct the action of profit distribution of minority shareholders. This paper is divided into three parts: introduction, text and conclusion, using comparative advantage theory and comparative analysis method in economics. The introduction points out that the core problem of minority shareholders'profit distribution is dividend division. Through combing the domestic and foreign research data, the problems to be solved are the corresponding relationship between legitimacy and litigation system, the specific judgment elements of the applicable conditions of the suit of minority shareholders' profit distribution, the comprehensive design of rules and the independent value of the lawsuit, etc. The first chapter mainly demonstrates the legitimacy and independent value of profit distribution. The lawsuit of profit distribution of minority shareholders is the embodiment of the principle of minimum intervention of law. To resolve these conflicts, the principle of equality of shareholders, the principle of prohibiting abuse of rights and the principle of encouraging minority shareholders' investment should be followed, especially the latter two principles have important applicable value to the behavior of not distributing profits at all. The action of profit distribution of minority shareholders has independent value, it can overcome the limitation of the litigation of resolution defect and the lawsuit of director's fiduciary, but also can solve the dispute with the least litigation resources maximization. The second chapter mainly expounds three conditions that should be satisfied in the action of profit distribution of minority shareholders. First, the company does not distribute distributable profits for a long time. The long-term non-distribution of profits shall take into account the profit distribution period stipulated in the articles of association, what stage of development the company is in, whether the major business plan determined by the company has been completed, the time for the company to make a sustained profit and the amount of the sustained profit, The number and proportion of the company's distribution within a certain profit period. Second, large shareholders or board of directors abuse their rights. The procedure of exercising voting rights, the purpose of shareholders' exercise of voting rights and the comprehensive result of exercise of voting rights should be considered synthetically. Third, the interests of minority shareholders have been infringed. The damage to shareholders' interests is actually the loss of expected profit, and there is causality between the loss and the abuse of rights. These three aspects show that the company does not distribute the current profits is a typical tort. The third chapter mainly explains the content that should be fully considered when designing the rules of procedure. The plaintiff of the lawsuit is a minority shareholder who is in a weak position, while the defendant is a company. According to the principle of comparative advantage, the profit is not distributed continuously, the profit can be distributed, the execution of the company's major business plan, the proportion and times of the company's profit distribution during the continuous period, The facts such as profit distribution scheme and voting procedure should be completed by the company, the purpose of exercising voting rights is illegal, the result of voting form is illegal, and the facts of direct infringement and causality should be proved by minority shareholders themselves. The defense is the legitimate reason why the company does not bear the liability for damages, and mainly focuses on the balance between the freedom of operation and the moderate intervention of the judiciary. The decision of the court should adopt a limited distribution judgment, and on the basis of giving the board of directors or the shareholders' meeting full consultation to realize the right of autonomy, the distribution ratio can be determined directly by the fair standard, and the purpose of the minority shareholders to file a lawsuit can be realized. In conclusion, it is suggested that on the basis of Article 24 of the Company Law interpretation IV (draft), the judgment conditions and subject qualifications should be perfected, the burden of proof, the reasons of defense and the scope of the court decision should be clearly defined.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.291.91;D925

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