EXERCISING AND PROTECTION OF SHAREHOLDERS’ RIGHTS TO RESEIVE DIVIDENDS, COMPARATIVELY LEGAL ASPECTS

Abstract

In comparison with current national legislation, EU legislation and legislation of its individual member states established a number of features of realization and protection of shareholders’ rights to participate in the distribution of profits of the company. Unlike to the art. 31 of the Law of Ukraine «On Joint Stock Companies», in which a ban on dividends is set only if such conditions are encountered at the time of making decision to pay and its implementation, the Second Directive 77/91 / EEC foresees such ban even if some negative effects may occur in the future. In particular, in accordance with part 1 of art. 15 Second Directive dividend payment is not made if the net assets of the companydue to the such payment may become less than the authorized capital increased by the reserves that the law or statute prohibits to distribute. The second EU directive sets the maximum amount of dividends to shareholders: no more than the sum of the results of the last completed financial year increased by the amount of undistributed income, as well as the amount of deduction from available for this purpose reserves and reduced by the amount deferred (uncoated) losses, as well as amounts that are entered in the reserve fund in accordance with the law or statute. The legislation of Ukraine does not provide the upper limit of the size of the dividends that may be paid to shareholders. The right to distribution of assets the company under the laws of the EU, except the right to choose areas of using profit and the right to receive dividends, includes another subjective right - the right to receive the interest accrued on the shares. Ukrainian legislation does not establish the possibility of calculation and payment of interest on the shares. Unlike the law of our countryEU law provides for the payment of interim dividends. The Law of Ukraine «On Joint Stock Companies» does not establish a right to interim dividend. By the EU legislation established a special way to protect the right to receive dividend payments in case of violation of legal limits set for it. In particular, the shareholders who received dividends contrary to established legal limits, the court can be obliged to return the amount of dividends received improperly. The Law of Ukraine «On Joint Stock Companies» (art. 31) does not establish the legal consequences of dividend payment due to the failure limits that are set for it. At the national law systems of some EU countries (Greece, Germany, Portugal, Finland, Switzerland, Sweden, etc.) established the right of shareholders to mandatory payment of dividends regardless of whether the decision of the supreme governing body of the company. The legislation of Ukraine provides such right only to holders of preferred shares. Holders of ordinary shares may exercise the right to receive dividends only if the general meeting of shareholders make the decision on their payment.