Legal Study On Defective Resolution Of Shareholders’ General Meeting

As the development of economy and flourishing of financial market, stock company becomes more important, and is already an indispensable participant of market economy. But as the development of stock company, shareholders’general meeting becomes arena of power struggle and interests contention between shareholders of stock company, because of the increasing of dispute arising from defective resolution of shareholders’general meeting. In order to meeting the development of economy, the international standards of company legislation, China modified her company law in2005. In this amendment, legislature enriched and improved the provisions on defective resolution of shareholders’ general meeting, and fixed the provisions on defective resolution of shareholders’ general meeting in article22, chapter1of Chinese Company Law. Although the modification of the provisions on defective resolution of shareholders’ general meeting makes it more operational and gains apparent progress, the provisions on defective resolution of shareholders’ general meeting in Chinese new Company Law are still needing refinement and further research. For the development of company, settlement of disputes of defective resolution of shareholders’ general meeting, and balancing the interests between all parties in stock company, this dissertation chooses Remedy for the Defective Resolution of Shareholders’ General Meeting as its topic. This article will research the defective resolution of shareholders’ general meeting and its remedy focusing on the relating problems in our country thoroughly and profoundly on the theories of civil and commercial law and learning from experiences of other countries, and make some suggestion for the refinement of Chinese company law.For the structure of this paper, in addition to the introduction and conclusion, the main part is divided into four chapters.The first chapter is a general theory of the resolution of shareholders’ general meeting, and lays the basis for researching the type and legal consequences of defective resolution of shareholders’ general meeting in below chapters. This chapter firstly analyzes the nature and organ of company, and affirms that shareholders’ general meeting is still the center of power to formulating internal intention of stock company and at the core of company organs. After clearing the important position of shareholders’ general meeting in stock company, this chapter analyzes the convening procedures and decision making rules of shareholders’ general meeting and induces the study of this dissertation----resolution of shareholders’ general meeting. Then the next subchapter indicates that resolution of shareholders’ general meeting is the internal intention of stock company and its nature is legal resolution after generalizing the existing theories of the nature of resolution of shareholders’ general meeting. Having knowledge of the legal nature of resolution of shareholders’ general meeting, the next subchapter analyzes the legal effect formation of resolution of shareholders’ general meeting and its internal and external legal effect.The second chapter researches on defective resolution of shareholders’ general meeting, and is an emphasis of this dissertation. Subchapter one firstly defines what defective resolution of shareholders’ general meeting is and studies the category of defective resolution of shareholders’ general meeting on knowing of the conception of defective resolution of shareholders’ general meeting. Then it points out that establish and effect defect is a main classification of defective resolution of shareholders’ general meeting, and lays it as the basis for below research. Subchapter two investigates the legislations of resolution of shareholders’ general meeting in classic continental and Anglo-American legal system countries and area. Having studied the legislations of resolution of shareholders’general meeting in other countries and area, the following subchapters analyze establish and effect defect specifically and concretely. Subchapter three analyzes establish defect of resolution of shareholders’ general meeting according to the holding procedure and resolution formation of shareholders’ general meeting. Subchapter four analyzes the general requirement of effectiveness of legal act and special requirement of effectiveness prescribed by company law and article of corporation which can affect effectiveness of resolution of shareholders’ general meeting with the notion that legal effect is value judgment by law for legal act.The third chapter is researches private law remedy for defective resolution of shareholders’general meeting and is emphasis and highlights of this article. This chapter firstly analyzes all the legal remedy for defective resolution of shareholders’ general meeting, and insists that we should found a complete remedy system, consist of judicial remedy which is the dominant remedy and non-judicial remedy as supplementary remedy. The following text discusses participant, security, limitation, legal result of defective resolution of shareholders’general meeting law suit, and puts forward some creative viewpoint。Chapter four analyzes the prescription of defective resolution of shareholders’ general meeting in Chinese company law and judicial opinion four concerning company law (draft), and makes some relating advice. This chapter firstly analyzes the prescription of defective resolution of shareholders’ general meeting in Chinese company law1994and2005, and points out the inadequacy. The following text analyzes the prescription of defective resolution of shareholders’ general meeting in judicial opinion four concerning company law (draft). After analyzing the prescription of defective resolution of shareholders’ general meeting in Chinese company law and judicial opinion four concerning company law (draft), the last subchapter suggests on the refinement of prescription of defective resolution of shareholders’ general meeting in Chinese company law on the research in before chapter, focusing on the inadequacy of the prescription of defective resolution of shareholders’ general meeting in Chinese company law and judicial opinion four concerning company law (draft).