The study of peculiarities of legal analogy in Russia of the civil law regime of dividends for commercial businesses

Abstract Russian firms are facing sanctions imposed by foreign countries. These restrictions forced the corporations to suddenly refuse the distribution of profits or shift the timing of dividend payments. This unusual practice created the need for appropriate regulatory parameters for the net profit distribution mechanism to shareholders. These circumstances reflect significant gaps in the legal regime of dividends, as well as the lack of a unified doctrinal position on best practices in this area. This paper fills the gaps in the legal regulation of dividend policy, complicated by corporate specificity. Hence, this study aims to identify, analyze, and comprehensively investigate the areas of uncertainty in the regulatory mechanism that describes the adoption and implementation of dividend distribution policy for LLC and JSC, while testing the consistency of legal analogy as a strong protective tool in the corporate field. The methodology of this study was based on executing general logical techniques of analysis and synthesis of the order and terms of dividend payment, as well as determining the ways of casual overcoming these gaps using legal analogy. The results reflected that overcoming uncertainty in the legal regime of dividends of LLC and JSC promptly seems possible through active use of the analogy of law. This will make it possible not only to counteract the unfair, unreasonable, and unfair practice of freezing net profit but also to increase the lack of freedom to determine the frequency of announcements and ensure the mechanism flexibility for establishing the timing of actual dividend payments.


Introduction
International sanctions and limitations negatively influence firm's performance. The impact on financial performance has some aftershocks that arrive in the form of restricted dividend ABOUT THE AUTHOR Viktor A. Mikryukov graduated from the Faculty of Law of Perm State University. Currently, he is an Assistant Professor of the Entrepreneurial and Corporate Law Department of Kutafin Moscow State Law University (MSAL). He specializes in civil law and various aspects of legal analogy, has experience in scientific and practical work in the field of corporate law and legal support of business.
payments. In many cases, it has been seen that management avoids making dividend payments as financial performance deteriorates. This not only impacts majority shareholders but also have certain implications for minority shareholders. This problem is of a great concern as it highlights the impact of such practices on minority shareholders. Around the globe, a high degree of concentration of corporate ownership was caused by large (majority) shareholders in LLCs and JSC. Dividend withholding is considered as one of the well-known methods of "freezing" minority shareholders and removing them from participation in the enterprise. Accordingly, when minority shareholders are deprived of a part of profits because of the distribution of so-called de facto dividends by majority shareholders (e.g., in the form of compensation for the performance of board member duties, payment for the services of formally unaffiliated but actually affiliated organizations) market mechanisms in the dividend regime prove ineffective (Sáez Lacave & Urtiaga, 2014) and regulatory provisions are insufficient. This is a great concern for minority shareholders as it deprives them from their legal rights. This study discusses the deprivation of rights for minority shareholders. This objective makes this study relevant, as the implications of this study's results will be applicable in other jurisdictions as well. Such impactful objectives enhance the significance of this study.
The dividend policy of commercial corporations such as Limited Liability and Joint-Stock Companies (LLC and JSC) significantly affects not only their own financial stability (Skinner & Soltes, 2009), the ability to effectively raise external capital (Ellahie & Kaplan, 2021), but also the welfare of their members (Serebryakova, 2012), and the interests of creditors (Sinitsyn, 2018). Thus, regardless of the country, companies may adopt dividend policies related to less manipulation of earnings to mitigate agency costs and create a reliable commercial reputation (He et al., 2017) and to reduce conflict potential (Berzins et al., 2018); hence, appropriate regulatory parameters for the net profit distribution mechanism to shareholders are necessary. Currently, under the crisis conditions caused by the sanctions of foreign countries, for many Russian corporations forced to suddenly refuse to distribute profits or shift the timing of dividend payments, the presence of these legal parameters is of particular relevance (Guseva & Petrov, 2022).
Whatever dividend policy a corporation chooses at a particular time, whatever its specific goals, the fundamental importance of its consistent implementation and the significance of the corresponding external and internal economic consequences require a rather clear, definite, and yet flexible civil legal dividend regime.
Despite the mentioned need and the presence of sufficiently detailed rules on the order of decision-making on profit distribution and the terms of actual dividend payment in special Russian legislative acts regulating the corporate life of LLCs and JSC, dividend policy remains one of the most hard-to-understand economic and legal problems (Tsepov, 2019). This circumstance stems from several significant gaps in the legal regime of dividends, as well as the lack of a unified doctrinal position on best practices in this area (Koussis & Ruzinski, 2019). Full and accurate definition of the legal regime of dividends in the corporate aspect becomes more and more relevant due to the frequent intersection of the status of the shareholder and the employee of the corporation. Accordingly, improper provision of the economic interest of the employee to receive dividends, including by using hidden bonus reduction (Shcherbatova, 2018), may negatively affect the stability of the system of labor relations and the company's staff.
These circumstances indicate the need to find and clearly qualify the main legal gaps of the civil legal regime of dividends LLC and JSC. Notably, the problem of uncertainty in the legal treatment of dividends is not unique to Russia, and therefore, the assessment of various approaches to its solution within the Russian legal framework may be useful for other jurisdictions.
Since analogy is a traditional and universal means of practical overcoming legal gaps (Koval, 2018) and a common method for combating legal uncertainty, which allows creating a bridge over the gap between the legal fact and the rule of law (Weinreb, 2005), while the methods of specification and interpretation appear devoid of a normative basis, it is necessary to test the possibilities of this creative civil legal tool (Mikryukov, 2020) in the sphere of regulation of gap corporate relations, which occur during the announcement and payment of dividends LLC and JSC. In this regard, it is possible to formulate the following scientific hypotheses: Hypothesis 1. The analogy of law will prove to be the means that should be actively used both to achieve the certainty of the legal regime of dividends and to balance the interests of the corporation, its individual participants, members of governing bodies, and counterparties. Hypothesis 2. The increased level of judicial discretion characteristic of the analogy of law, which itself introduces some element of general uncertainty into the legal field, does not prevent the private application of this tool to achieve certainty of the legal regime of dividends in specific situations from becoming more active.
The results revealed that the gaps in legal regulation of the permissible frequency of distribution of net profit of LLC and JSC and determination of time limits for payment of declared dividends were found and legally qualified. The ability of analogy of law to act as an effective tool for overcoming the uncertainty of the legal regime of dividends in the aspect of periodicity of their accrual and payment terms further supports Hypothesis 1. Secondly, the results revealed that conducted analogy with the developed practice of counteraction of courts to unfair manipulation with the size of the authorized capital of LLC and JSC allowed to formulate concrete conditions for the application of analogy of law in the considered aspect. This excluded doubts about the legitimacy of Hypothesis 2. The overall result of the study was a confirmation of the positive role of legal analogy in the legal regulation of economic activity, complicated by corporate specifics.

Literature review
The right to obtain dividends is traditionally seen as a central property (economic) incentive to pool capital in a corporation with subsequent distribution of capital gains (net profit of the corporation) among the participants (Frolovsky, 2012). At the same time, the shareholders' confidence in the ability to steadily receive dividends is especially important in the context of global financial crises and cataclysms (Chekhova, 2009). It is the property participation in LLC and JSC activities that is determinative for the shareholder, which is conditioned by the very nature of a commercial organization, the qualifying feature of which is profit making as the main goal of activities (Lomakin, 2014). This science generally emphasizes the significant impact of dividend policy on the welfare of shareholders in companies (Khan, 2010). Therefore, there is absolutely no coincidence that the need to provide shareholders with an equal and fair opportunity to participate in company profits through dividends is recognized as a principle of good corporate governance recommended by the Bank of Russia (Bank of Russia, 2014).
Indeed, a study of market indicators shows that companies that pay dividends have higher returns than those that don't, and, accordingly, investors often prefer dividend stocks (Petrie Fuller & Goldstein, 2003). Additionally, dividends have a positive effect on building the right reputation and growth opportunities for the firm (Flavin & O'Connor, 2020). Finally, it has been scientifically established that a policy of not paying dividends ultimately makes a corporation's asset and capital structure untenable because the earnings of successful companies exceed their investment opportunities (DeAngelo et al., 2004).
Under the circumstances noted, it is reasonable to consider the need for regulatory safeguards to ensure that there is a real possibility, rather than hypothetical "bare right" for LLC and JSC shareholders to participate in the distribution of net profits in proportion to their shareholdings, which presents a balanced benefit to all participants in corporate relations.
However, in reality, the norm (Russian Federation Federal Law, 1995, 1998 only points to the right of LLC and JSC to decide on the distribution of their net profit among the company participants (to decide on dividends on outstanding shares). The explanations the higher courts interpret the above norms to mean that the subjective (binding) right of a shareholder to demand payment of dividends arises only if the general shareholders meeting pass a resolution on their payment, and, accordingly, in the absence of such a resolution by the supreme corporate body, LLC and JSC are not entitled to pay dividends, while shareholders are entitled to demand their payment. Moreover, if the general meeting of participants of the corporation the decision on the distribution of profits was not taken, the court may not satisfy the shareholder's claim for payment of dividends, since the decision on this matter falls within the exclusive competence of the general meeting (Supreme Arbitration Court of the Russian Federation, 1999, 2014a. The scholars also say that before the decision on payment of dividends the shareholder has no subjective right that can be realized in court (Ternovaya, 2012), and in modern conditions the right to a dividend cannot be understood as absolute (Sinitsyn, 2018). All this fits into the well-known and often quoted position of the Constitutional Court of the Russian Federation that judicial control is designed to protect the rights and freedoms of shareholders, but not to check the economic feasibility of decisions taken by the board of directors and the general meeting of shareholders, which have autonomy and broad discretion in decision-making in business (Constitutional Court of the Russian Federation, 2004), which in fact is a variant of the business judgment rule.
The outlined circumstances conclude that within the economic model of the company, the shareholders of LLC and JSC have no legally enforceable claim to economic return from the corporation, and in many cases, it is unlikely that they can get a share of the economic profits of the corporation (Greenwood, 2006).
That said, while in corporations with dispersed shareholding structures, the legislature's silence on the legally assured ability to claim a dividend payment decision does not present serious legal difficulties due to the presence of sufficiently strong economic incentives for corporate management to accrue and pay dividends (Miller & Modigliani, 1961), and the relevant economic analysis is fairly widely presented (Glazunov, 2017;Koussis & Ruzinski, 2019), with respect to LLC and JSC with a concentrated corporate counter Controlling shareholders of such corporations use dividend policy to expropriate minority shareholdings (Sáez Lacave & Urtiaga, 2014). Majority shareholders may extract (tunnel) wealth from companies using various (non-dividend) methods, such as cash flow tunneling, asset tunneling, and equity tunneling (Atanasov et al., 2011). In some private cases, dominant short-term shareholders (so-called "wandering controllers"), bypass dividend payments by taking almost all corporate values immediately to the detriment of minority shareholders (Kang, 2013).
In this context, one of the significant related gaps causing corporate disputes between majority and minority shareholders and presenting difficulties in their resolution by the courts is the absence of an explicit legal rule on the possibility or inadmissibility of cancelation by the general meeting of LLC and JSC shareholders of an earlier decision on the payment of dividends. In modern realities characterized by the increased volatility of geopolitical and socio-economic business conditions, the number of situations in which the economic company itself, all or controlling shareholders may find interest in restoring the declared but unpaid dividends to the net profit increases, and accordingly, the issue of shareholders' right to the stability of the corporate act on profit distribution becomes more relevant.
If one considers the connection established in science between the dividend policy of a company and the liquidity of the stock market (Banerjee et al., 2005) and the ability of a company to mitigate agency conflicts by adjusting the timing of dividend calculation and payment (Ellahie & Kaplan, 2021), shareholders clearly need not only guarantees of the possibility of actually participating in the distribution of corporate profits but also sufficient freedom to determine the frequency (frequency) of announcement and the setting of timing of actual dividend payments. Such freedom would allow, in particular, not only to adequately ensure the signaling function of dividends it is scientifically established that the market reaction to intermediate and final dividend reduction is significantly negative and stronger in case of intermediate dividend reduction (Balachandran et al., 2012), but also to distribute free cash flows efficiently.
However, in this aspect, the participants of business corporations also face difficulties caused by the existing gap in establishing the limits of freedom to determine the frequency of decisions on payment of interim dividends (the so-called "nonmonotonic dividends" -see Petrie Fuller & Thakor, 2002) and the resulting uncertainty in the question of the possibility or inadmissibility of net profit distribution more than once a quarter.
Given that the timing of actual payment of previously declared dividends constitutes one of the key indicators of dividend policy (DeAngelo et al., 2009), which is part of the "golden formula" of the legal regime of LLC and JSC dividends (Tsepov, 2019), a serious legal gap in the area in question is the lack of certainty as to whether it is possible to change the default statutory rule (for LLC it is 60 days starting from the date of the decision on payment, for JSC it is 25 working days starting from the date on which the persons entitled to receive dividends are determined) and increase these terms by the charter of a particular corporation or a special condition of the decision on distribution of net profit. Indeed, under the impact of crisis social and economic phenomena on the activity of a particular corporation, it is quite reasonable to imagine a situation where the availability of net profit, not provided at a certain moment with the necessary amount of working capital, requires a more substantial deferral of dividend payments. There is also a reasonable assumption that a longer period for implementation of the decision to pay dividends may be provided in the corporation's charter in the interests of individual (large) shareholders (Chekhova, 2009).
The given review allows us to indicate the issues of uncertainty (gaps) of the civil legal regime of dividends of LLC and JSC, which do not have a clear normative and doctrinal definition: • Whether shareholders of LLC and JSC have the right to demand not only payment of declared dividends but also to force a decision on the distribution of net profit by means of dividend payment?
• Is voluntary cancelation by shareholders of LLC and JSC of the earlier taken decision on payment of dividends admissible?
• What is the permissible degree of freedom of shareholders of LLC and JSC in the matter of determination of the frequency of announcement and terms of actual payment of dividends?
The outlined circumstances require a discussion on how to overcome the noted gaps and uncertainty in the legal regime of dividends of LLC and JSC by using a legal analogy.
It is important to note that despite the well-known independence of the organizational and legal forms of LLC and JSC (unlike LLC, JSC issues shares as securities requiring special registration and accounting, the legislator provides for LLC mostly closed membership, while for JSC-rather open membership), the current Russian legislation defines the basic legal parameters of the dividend payment mechanism in a very similar way. Some differences in such parameters are of terminological or technical (procedural) nature (e.g., Russian Federation Federal Law, 1998 does not use the word "dividends" in the norms on distribution of net profit among shareholders, but in practice, the respective part of LLC net profit is indicated exactly as dividends by analogy with the JSC). Therefore, the issues of searching and overcoming the gaps in the net profit distribution mechanism can be considered for LLCs and JSCs jointly.

Materials and methods
This research draws on the analysis of existing regulations and corporate law structures of Russian civil law (Russian Federation Federal Law, 1995, 1998, as well as on the analysis of related court disputes.
The theoretical basis of this research embraces works by both Russian and foreign experts in civil law, corporate law, and economic analysis law.
Empirical basis includes explanatory judicial acts of the highest judicial instances of Russia (Supreme Arbitration Court of the Russian Federation, 1999; Supreme Arbitration Court of the Russian Federation, 2014a; Supreme Arbitration Court of the Russian Federation, 2013; Supreme Arbitration Court of the Russian Federation (2014b) with the decisions of lower courts on specific disputes related to the application of the rules on the order of the distribution of net profit LLC and JSC.
Legal analogy was used to overcome the noted gaps and uncertainty in the legal regime of dividends of LLC and JSC. Legal analogy means involving an earlier decision being followed in a later case because the later case is similar to the earlier one. Here, courts used the decision made in similar cases to make future decisions, this requires similar case proceedings and characteristics for decisions to be applied to other cases as well. In the Russian legal system, legal analogy assists in ascertaining, whether a case without a legal solution is relevantly similar to another to submit the former to the norm regulating the latter. Hence, legal analogy plays a vital role in answering the problem of legal gaps in various legal issues.
The research conducted is practice-oriented, but being based on an analysis of legal proposals that derive from existing laws, legal theories, and scientific materials, it is doctrinal, i.e., it is more a "study of law" than a "study on law" (Kharel, 2018). The methodological basis includes logical methods of analysis and synthesis, induction and deduction, comparison and generalization, typology, and analogy, all of them being conventional for civil law research (Luneva, 2015). In particular, it required a formal legal analysis of the text of the existing norms of the Russian Federation Federal Law (1995) and the Russian Federation Federal Law (1998) to answer the basic question of their ability to ensure the basic economic interest of the shareholder. A comparison was made of the effectiveness of the application of analogy in other private corporate law aspects and corporate law in general with how the analogy of law can cope with the achievement of certainty in the area under study.

Results
The research revealed the significance of the main aspect of uncertainty in the legal regime of dividends of LLC and JSC, which consists of the legislator's reticence to require a decision on the distribution of the corporation's net profit among its shareholders.
Although the legislator has unambiguously enshrined only the right (but not the obligation) of the corporation to pay dividends to its shareholders and from the formal viewpoint, there is no gap in the law, the existing norms are unable to adequately respond to specific social and economic realities and ensure compliance with the principles of corporate law, which indicates a gap in substance. In this connection, in cases of unfair, unreasonable, and unfair freezing of net profit to the detriment of individual shareholders, it is proposed to use such an effective tool to combat uncertainty as an analogous of law. This will balance the equivalent and subject to comparable protection of the private interests of the corporation, its individual participants (including majority and minority shareholders), members of the governing bodies, and counterparties. This conclusion is the main evidence to support the Hypothesis 1.
The debatable issue of the right (or lack thereof) of the general meeting of shareholders of LLC and JSC to cancel the earlier decision on payment of dividends is considered. On the basis of a similar application of the analyzed judicial acts, the conditions were developed, under which such cancelation can be recognized as legitimate.
This study finds and qualifies existing gaps in the legal regulation of the permissible frequency of distribution of net profit of LLC and JSC and determination of time limits for payment of declared dividends. The need to provide increased flexibility in resolving these issues with the application of the basic principles and meaning of civil law through the mechanism of analogy of law was argued. The ability of analogy of law to act as an effective tool for overcoming the uncertainty of the legal regime of dividends in the aspect of periodicity of their accrual and payment terms further substantiates the correctness of Hypothesis 1.
The conducted analogy with the developed practice of counteraction of courts to unfair manipulation with the size of authorized capital of LLC and JSC allowed to formulate concrete conditions for the application of analogy of law in the considered aspect. This excluded doubts about the legitimacy of Hypothesis 2.
The overall result of the study was a confirmation of the positive role of legal analogy in the legal regulation of economic activity, complicated by corporate specifics.

The legislator's reticence on the possibility of requiring the adoption of a decision on the payment of dividends
In Russia, as well as in other countries with a high degree of concentration of corporate ownership caused by large (majority) shareholders in LLCs and JSC, the hypothesis of expropriation of minority shareholders' income by majority shareholders having and actively implementing other (non-dividend) ways to reach corporate profits is very often confirmed (Crisóstomo & Brandão, 2016). Indeed, dividend withholding is considered one of the well-known methods of "freezing" minority shareholders and removing them from participation in the enterprise (Kleinberger, 1990). Accordingly, when minority shareholders are deprived of a part of profits because of the distribution of so-called de facto dividends by majority shareholders (e.g., in the form of compensation for the performance of board member duties, payment for the services of formally unaffiliated but actually affiliated organizations), market mechanisms in the dividend regime prove ineffective (Sáez Lacave & Urtiaga, 2014) and regulatory provisions are insufficient.
We think that for a casual response to the legal anomaly of the inability to protect the rational economic interest of minority shareholders due to the silence of the legislator on the issue of the ability (or lack of ability) of shareholders to demand a decision on net profit distribution (in the absence of objective legal and economic contraindications to such distribution), it is possible and expedient to resort to the analogy of law. If we use this law enforcement tool as a creative source of determining the applicable rule of conduct in a specific situation not by specific norms (due to the lack of them), but by the so-called general principle of law (Damele, 2014), then the legal analogy will appear as "something more" than just a logical technique used by the court (Tsikhotsky, 2011) and will ensure the appropriate level of judicial protection for bona fide LLC and JSC shareholders. In this context, the application by the court of the analogy of law involves imposing on the corporation the obligation to share profits based on the general principles and meaning of civil legislation, the requirements of good faith, reasonableness, and fairness (Civil Code of the Russian Federation 2022a, 2022). In other words, relying on the analogy of law, the courts, when they detect signs of bad faith unreasonable and unfair conduct (abuse of the commercial and legal freedom available to them) in the actions of board members who do not recommend the payment of dividends, or in the actions of majority shareholders who vote against the decision to pay dividends, may and should limit the perverse economic and legal discretion of corporate governance bodies (management and controlling shareholders).
It is important to clarify that it is not a question of a court reviewing the economic expediency of commercial decisions since this would appear as a public intrusion into the internal (private) affairs of the corporation and would contradict the idea that court review of decisions on non-distribution of profits and compelling the corporation to pay dividends is impossible in the absence of a violation of law, internal corporate documents, or the corporate agreement (Greenwood, 2006). That said, it is hardly possible at all to impose an obligation on the court to substitute its role for that of the businessman and to require it to consider many economic factors in making a legal decision, such as the fact that firms in more competitive industries are usually more willing to pay dividends than firms in less competitive markets (Grullon et al., 2007). In contrast, it is a question of human rights actions by the court in the context of an explicit, legally and economically unjustified "freeze" or "tunneling" of net profits to the detriment of specific (including minority) shareholders.
The Legislator's Reticence on making regulations over the payment of dividends is questionable. The decision to make dividend payments is solely under the control of a firm's management. Based on corporate law, organizations have the freedom to decide regarding the payment of dividends. The profit distribution is likely to be impacted by a firm's ability to generate profits. During the crisis, it gets difficult for an organization to pay dividends. Hence, dividend payment is subjective to a firm's performance. Currently, Russian firms are facing uncertainties due to sanctions. Such restriction has impacted firm's profits. This volatility in profits is likely to be reflected in a firm's profit-sharing policy. Hence, this has become problematic for Russian firms to distribute dividends in the time of crisis. For regulators, imposing the decision to make dividend payment is questionable as dividends are linked with a firm's performance and profitability. As Russian firms are facing uncertainties and sanctions are negatively impacting profits, their ability to pay dividend has been reduced. With declining profits, any legislation rules cannot make a firm to dividend; hence, the Legislator has lower authority over making regulations regarding the payment of dividends. Moreover, the distribution of ownership also influences the decisions regarding profit sharing. When there are multiple shareholders representing the board's majority, then there is a likelihood that some of them might act in their personal interest rather than interest of minority shareholders. They might have a good intention to retain funds to use it for future acquisitions and investments. In contrast, they may have bad intentions to restrict minority investors from accessing their funds.
An analogy may be drawn here with how Russian courts, adequately perceive the doctrine of business judgment rule, originally designed to protect (provide immunity) corporation directors from the consequences of prudent but failed commercial decisions (McMillan, 2013), extend the "central" and "pervasive" corporate law doctrine (Bainbridge, 2004) to management activities of shareholders in their manipulation of the share capital. Courts refrain from proactive revision of corporate acts and proceed from the presumption of economic soundness (expediency, reasonableness) and legal legitimacy of decisions of the general meeting of shareholders to increase the share capital, in which it is likely that the share (relative size of shareholding) of those participants who did not want or could not make their part of the additional contribution will be reduced. However, the application of the fiduciary principles of good faith and reasonableness requires the court to evaluate such management decisions considering the need to ensure a fair balance of equal and equally protected by the law interests of all participants in the relevant corporate relations. Accordingly, if a plaintiff contesting such a decision proves that its adoption is not motivated by the interests of the corporation, such as the need to raise a substantial amount of funds for its activities and will decrease the share of the participants disagreeing with such an increase in the charter capital, the court may declare such a decision invalid (Presidium of the Supreme Court of the Russian Federation, 2019). It seems quite logical that considering the principle of universality of law, which requires that similar cases should be resolved in the same way (Maris, 1991), the courts should approach the consideration of claims connected with contestation of decisions on non-payment of dividends.
This aligned with the ideas discussed on hypothesis 1 that suggests that the analogy of law will prove to be the means which should be actively used both to achieve the certainty of the legal regime of dividends and to balance the interests of the corporation, its individual participants, members of governing bodies and counterparties. The casual response to the legal anomaly of the inability to protect the rational economic interest of minority shareholders due to the silence of the legislator on the issue of the ability (or lack of ability) of shareholders to demand a decision on net profit distribution (in the absence of objective legal and economic contraindications to such distribution), it is possible and expedient to resort to the analogy of law. This clearly suggests that an unbalanced situation where the interest of corporate or shareholders is considered more important compared to minority shareholders.
Of course, allowing courts to casually deal with abuses of shareholder rights provides far from perfect protection against such abuses, as the outcome of each litigation is always uncertain (Conac, 2017). Moreover, the use of the analogy of law in legal decision-making itself involves a serious element of enforcement discretion, sometimes allowing the court's relevant analogical reasoning to be defined as a "mask" for unacknowledged judicial lawmaking (Schauer & Spellman, 2017). Primarily, however, the analogy of law should be associated with axiology and the need for internal consistency of the legal system (Koszowski, 2017), and in the context at hand, as a mechanism for ensuring the defining role of the principle of good faith in corporate law (Strine et al., 2009).
It is precisely such judicial activism that would be consistent with the detected trend of equitable substitution of shareholder harassment in their corporate power by increased guaranties of dividend payments (Jiraporn & Ning, 2006). Simultaneously, to increase the degree of certainty of judicial practice and predictability of judicial acts in the aspect under consideration, it is possible once again to resort to legal analogy, which generally contributes to the reproducibility of ways to achieve the legal goal and, therefore, predictability of legal planning (O'Donnell, 2011), namely, with the necessary modifications, use the developments made by the Supreme Arbitration Court of the Russian Federation in issues of compensation for losses by persons who are members of legal entities (Supreme Arbitration Court of the Russian Federation, 2013). In particular, when assessing the reasonableness and good faith of the behavior of majority shareholders of LLC and JSC, it seems appropriate to proceed from the following facts: • The plaintiff (minority shareholder) must prove the existence of circumstances demonstrating bad faith and (or) unreasonable actions (inaction) of the defendant (majority shareholder), resulting in adverse consequences (freezing of net profit, its improper use); • If the plaintiff has presented evidence of the unjustified withholding of dividends (on the tunneling of net profit, the authorization of the payment of de facto dividends), the defendant may provide explanations regarding his actions (inaction) and indicate the reasons for his choice of vote on the distribution of net profit (for example, unfavorable market conditions, the need to accumulate reserves when there is increased industry, territorial, or other risks) and provide relevant evidence; • If the defendant refuses to provide explanations or is manifestly incomplete, if the court finds such conduct to be in bad faith, the burden of proving the absence of a breach of the duty to act in good faith and reasonably may be placed on the defendant by the court.
A consistent application of these conditions will limit the discretion of the courts in applying the analogy of law in resolving disputes over the right to dividends and will act as a practical way to support the Hypothesis 2.

Uncertainty of the law on the question of the admissibility of voluntary cancelation of an earlier decision on the payment of dividends
The problem of uncertainty of the scope of the shareholder's right to a dividend when deciding on the distribution of net profit is joined by the issue of self-cancellation of such a decision. The absence of a direct legislative rule on the possibility or inadmissibility of cancelation by the general meeting of shareholders of LLC and the JSC of the earlier decision on payment of dividends causes a significant number of corporate disputes, representing questa vexata in their resolution by courts. Just as dividends themselves signal the seriousness of the conflict between the large owners controlling the company and the small shareholders, so announcements of dividend changes (cancellations) provide new information about this conflict (Gugler & Yurtoglu, 2003).
In judicial practice and doctrine, there is no uniform approach to overcoming this gap. In some cases, the courts recognize the right of the supreme governing body of LLC and JSC to cancel earlier decisions, referring mainly to the fact that there is no legislative prohibition on such cancelation, and this cancellation act is within the competence of the general meeting of shareholders (Federal Arbitration Court of the East Siberian District, 2011, 2013).
Similar practice, when the courts recognize the subsequent recognition as lawful the decisions of the general meeting not only on the issue of profit distribution but also on other issues within the competence of the supreme body of the corporation (Arbitration Court of the North-Western District, 2019; Federal Arbitration Court of the Moscow District, 2010), allows some scholars to claim the actual validity in the Russian legal order of the institute of cancelation of decisions of meetings, the normative basis of which is the principle of autonomy of the will (Cherdintseva, 2022). Simultaneously, if we turn to the problem of cancellation of unilateral transactions, considering the similarity of the legal regime of decisions of assemblies and transactions recognized in science (Laptev, 2016), we can find in science the opinion that the basic principles of civil legislation allow to cancel previously made unilateral transactions even in the absence of special legislative permission for such cancelation (Rzyanin, 2016), which generally strengthens the stated position.
When considering other similar disputes, courts deny the possibility of restoring declared dividends as part of net profit by canceling the decision on their payment. This opposite conclusion is based on the idea that after the general meeting adopts the decision on payment of dividends, LLC and JSC are deemed to have declared the payment of dividends, and from that moment, the right of the corporation turns into an obligation to its shareholder; therefore, arbitrary cancellation of an earlier decision is unacceptable (Federal Arbitration Court of the Far Eastern District, 2012) and a mirror reference to the lack of provisions in the law directly empowering shareholders to cancel earlier adopted.
This law enforcement approach can also be scientifically justified by the fact that the adoption of the decision on the profit distribution in itself generates an obligation in which the corporation acts as a debtor, and its shareholders become creditors with rights of claim, and, accordingly, the subsequent unilateral cancellation of the company's decision would come into conflict with the provisions of Article 310 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation 2022b, 2022), according to which unilateral withdrawal from an obligation and unilateral change in its terms are not allowed.
It seems that if we resort to the analogy of the law, it is possible to find a compromise way to overcome the private uncertainty of the legal regime of dividends. Thus, in the absence of rules allowing or prohibiting the cancelation of the previously made decisions of general meetings of creditors in bankruptcy cases, the Supreme Court of the Russian Federation concluded that such cancellation is overall possible, but on the condition that it has no signs of abuse of right and that it is made until the canceled decision has not had a legal effect, i.e., has not started to affect the rights and legitimate interests of persons external to the meeting participants (Supreme Court of Russian Federation, 2020). Accordingly, if this conclusion lacking any obvious bankruptcy specifics is applied analogously to the solution of the corporate legal problem in question, it should be admitted that as a general rule, even in the absence of any signs of abuse of right in the intentions of the meeting participants, the cancelation of the decision to pay dividends is unacceptable, since the shareholders' decision to pay dividends causes legal consequences right from the moment of its adoption. This approach will fully correspond to the idea of the necessity to make the shareholder's right to a dividend full-fledged, not depending on the abusive discretion of managers or majority shareholders controlling the corporation. Simultaneously, agreeing that the structure of corporate ownership ultimately plays a key role in the formation of a dividend policy (Roberts & Michaely, 2011), it should be specified by way of compromise that it is still possible to cancel the earlier adopted decision on profit distribution if absolutely all the shareholders of LLC and JSC who previously adopted the canceled decision, perform the voluntary act of cancelation.

Gap in establishing the boundaries of freedom to determine the frequency and timing of dividend payments
In the provisions of Article 28 of the Federal Law of 08.02.1998 N 14-FZ (as amended on 02.07.2021) "On Limited Liability Companies" (Russian Federation Federal Law, 1998), as well as in Article 42 of the Federal Law of 26.12.199526.12. N 208-FZ (as amended on 14.07.2022) "On Joint Stock Companies" (Russian Federation Federal Law, 1995), which stipulates the right of LLCs and JSCs to decide on the distribution of their net profit among the participants of the company (to adopt resolutions (declare) on payment of dividends on outstanding shares), it is specified that such decisions may be adopted "every quarter, once every six months, or once a year". Simultaneously, these laws specify that the period for the payment of dividends to JSC shareholders shall not exceed 25 business days from the date on which the persons entitled to receive dividends are determined, and the period for the payment of a portion of distributed LLC profits shall not exceed 60 days from the date of the decision on the distribution of profits.
These rules, described without any reservation, do not clearly answer the question of the possibility of distributing net profit generated over shorter periods (e.g., monthly, weekly, daily). The question of whether a specific LLC or JSC has the right to establish other (longer) periods of actual dividend payment at the level of the Charter or in a specific decision on profit distribution remains open.
Most legal scholars interpret the law in such a way that shareholders of LLCs and JSCs cannot decide on the distribution of net profit more than once a quarter (Boyeva, 2017), and circumventing this prohibition by issuing interest-free loans to shareholders during the quarter with subsequent offsetting of counterclaims for payment of quarterly dividends is fraught with negative tax consequences (Kravchenko, 2022). Some courts, qualifying the monthly distribution of dividends as the actual payment of wages (implying a different tax regime), emphasize that the law allows the establishment of a different procedure for dividend distribution to the distribution of a portion of profits among its participants in proportion to their shares in the authorized capital, but not change the frequency of net profit distribution (Arbitration Court of the Volga District, 2016).
Similarly, the statement of the imperative nature of the above default norms-terms (Grigoryeva & Kulakhmetov, 2012) makes some authors unconditionally deny the possibility of changing the terms of payment of declared dividends and qualify the provisions of LLC and JSC charters containing the increased terms as void (Krayetskaya, 2022).
To overcome the uncertainty in a more flexible way seems more reasonable by using the analogy of law and drawing on the general principles and meaning of civil legislation (as established in paragraph 2 of Article 6 of the Civil Code of the Russian Federation). Thus, a more limited frequency of decision-making on payment of dividends can be justified and accepted only in the aspect in which it prevents distribution under the guise of dividends of property (income), which does not yet constitute the formed net profit. In this sense, the courts do emphasize that the decision on the distribution of future profits cannot be recognized as a decision on the payment of dividends, since the possibility of distributing the organization's income from a (separate, single) economic operation (rather than net profit for a certain period) is not allowed by law (Arbitration Court of the Central District, 2017). However, if we consider the admissibility of payment of dividends at the expense of undistributed net profit of past years (Arbitration Court of the North Caucasus District, 2016; Ministry of Finance of the Russian Federation, 2012) regarding the economic and legal status of which there is no doubt, and recognize the existence of technical (accounting) possibility to determine the amount of interim net profit formed for any reporting period since the last previous decision to pay (or non-pay) dividends, we must admit that net profit implies the possibility of distributing it with any type of frequency whatsoever. This conclusion is correlated with the new clarification of the Finance Ministry according to which in cases when the amount of net profit determined according to data of the annual accounting (financial) statements appears less than the number of interim dividends (distributed profit) paid on the basis of respective decisions made according to data of the interim accounting (financial) statements, it does not change the economic qualification of made interim payments exactly as dividends (Ministry of Finance of the Russian Federation, 2020).
In turn, the limitation of the maximum duration of the LLC and JSC obligation to actually pay declared dividends, clearly aimed at protecting the dividend rights of minority shareholders (Khuzin, 2012), cannot be perceived unambiguously and unconditionally. If absolutely all shareholders of a particular LLC or JSC, realizing the objective difficulties of management in the attraction of working capital, intend to help their own corporation and provide preferential terms of payment, such their intention should be considered reasonable and bona fide considering basic principles of civil legislation.
Finally, assessing the resulting legal uncertainty through the analysis of the mentioned legal norms, it seems possible by analogy to refer to the explanations developed in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 14.03.2014 N 16 "On freedom of contract and its limits" (Supreme Arbitration Court of the Russian Federation, 2014a, 2014) in relation to clarify imperative or dispositive norms that define rights and obligations of contract parties: • a norm is imperative if it contains an explicit prohibition on the establishment by agreement of the parties to a different (than it is stipulated by this norm) condition of the contract; • In the absence of an express prohibition to establish otherwise in a norm, it is imperative if, based on the objectives of legislative regulation, it is necessary to protect particularly significant legally protected interests (interests of a weak party to the contract, third parties, public interests, etc.), preventing gross violation of the balance of interests of the parties or the imperative norm follows from the substance of the legislative regulation of this type of contract.
A similar application of these explanations to the legislative provisions determining the frequency and timing of payment of declared dividends shows that, in the absence of explicit prohibitions on the customization of these provisions (setting shorter reporting periods for the purposes of net profit calculation and distribution, lengthening the timing of dividend payments), they should be considered dispositive as long as this does not violate the balance of interests of the corporation, its participants, management, and creditors.

Conclusions
To overcome uncertainty in the legal regime of dividends of LLC and JSC promptly, it seems possible and necessary not to be afraid of reproaches of covert judicial law-making (Schauer & Spellman, 2017) and excessive liberalization and dispositiveness of the content of corporate legal regulation (Popondopulo, 2014), but to actively use the analogy of law (Civil Code of the Russian Federation 2022a, 2022). This will make it possible not only to counteract the unfair, unreasonable, and unfair practice of freezing net profit to the detriment of individual shareholders but also to increase the lack of freedom to determine the frequency of announcements and ensure the flexibility of the mechanism for establishing the timing of actual dividend payments.
Consistent application by the courts of the analogy of law and the related direct application of civil law principles will make it possible to develop proposals for the normative elimination of the gaps outlined. Simultaneously, considering that precise rules still regulate specific situations more consistently and clearly than general principles (Braithwaite, 2002), it would be expedient to replace the recommendation at the level of the Corporate Governance Code not to decide to pay dividends if such a decision, without formally violating the restrictions established by law, is economically unjustified and may lead to false perceptions about the corporation's activities (Corporate Governance Code, 2014) with the recommendation to ensure a fair opportunity for each shareholder to insist on the distribution of profits through the payment of dividends in the absence of objective legal and economic contraindications.
The results of the analysis of the possibility of applying the analogy of law to address issues related to the decision to pay or cancel dividends, as well as the degree of flexibility allowed in the formulation of such decisions, can be presented as a model and be in demand when addressing problems of implementation of other rights of shareholders and other corporate decisions.
In the findings section, the gaps in legal regulation of the permissible frequency of distribution of net profit of LLC and JSC and determination of time limits for payment of declared dividends were found and legally qualified. The ability of analogy of law to act as an effective tool for overcoming the uncertainty of the legal regime of dividends in the aspect of periodicity of their accrual and payment terms. These observations support the ideas reflected in Hypothesis 1. Secondly, results revealed that conducted analogy with the developed practice of counteraction of courts to unfair manipulation with the size of the authorized capital of LLC and JSC allowed to formulate concrete conditions for the application of analogy of law in the considered aspect. This excluded doubts about the legitimacy of Hypothesis 2. The overall result of the study was a confirmation of the positive role of legal analogy in the legal regulation of economic activity, complicated by corporate specifics.