法院如何支持股東的抽象股利分配請求－－來自197份商事裁決書的類型化分析

考察司法在「法律與商業」之間的干預立場，最佳試金石非抽象股利分配之訴莫屬，因為這需要法官代替商人做出一項商業決策，裁決需要包含分配股利的方式、額度與時間等內容，不僅意味著司法干預商業力度的實質性深化，更考驗法官並不擅長的商業智慧。此類司法裁決需要回答兩個問題：何種事由支持原告訴請？如何支持之？基於裁決的類型化實證分析發現，關於問題一，法院的整體立場保守，一般不傾向於支持，但少數支持的裁決在適用事由上多有創新之舉，裁判困境主要來自問題二，判令公司分配某個金額的股利成為普遍做法，但妥當性受到質疑。在「商業與法律」之間的司法裁判糾結面前，理論研究給予法官的最好幫助是裁判方法的發現與指導。

Expectant dividend distribution lawsuit serves as the best touchstone in exploring the judicial stance in the border of ''law and business'', for it allows the judge instead of businessman to make a business judgment. This is especially the case when the adjudication includes the method, amount and period of dividend distribution, as it not only substantially deepens the judicial intervention in business, but also tests the business wisdom that judges were not good at. Usually, two questions needed to be answered in a judicial decision: When to uphold plaintiff's claim and on what ground? How to support it? Through the empirical research on typing the cases, it is found that the court's overall stance on the first issue is conservative, and generally does not tend to be supported. However, a few supported rulings are more innovative in the application of causes. In fact, juridical dilemma mainly comes from the second issue. Although it is a common practice to order companies to distribute certain amount of dividend, the adequacy of such approach is questioned. Therefore, the best support such theoretical research can provide to judges is to discover adjudication methodology and give them proper guidance when they are entangled in the face of their adjudications between ''business and law''.