On The Non-contentious Procedure Of Company Disputes And Its Construction

With the fast development of economic and society in China, company disputesappears complex and diversified development trend. In recent years, the cases hearingcompany disputes in the judicial practice of China have confronted with a prominentproblem. The absence of equivalent procedure support for the rights granted by partialsubstantive law gives rise to the obstacles and difficulties for the subject of rights torealize just claims, and to guarantee substantive rights in the litigation procedure. Thenormal litigation procedure apparently is incompatible with the nature and feature ofmany company disputes, which influences the parties to protect their legal rights andinterests by seeking for judicial remedies. Which regard to the nature and features ofsome special company disputes, it is essentially necessary to establish a specialprocedural system concerning the non-contentious procedure. The non-contentiousprocedure has systematic strength which cannot be substituted in contrast withlitigation procedure, it is necessary and feasible to establish the non-contentiousprocedure about company disputes. The construction of non-contentious procedureabout company disputes mainly includes two parts, one of them is determinationabout the type of company non-contentious events, the other one is regulations ofnon-contentious procedure about company disputes in procedural law. Theconfirmation of the category of company non-contentious cases on litigation,confirming the application scope of company non-contentious procedure, is acompulsory condition for realizing practical effects in judicial practice. At present,which company disputes badly need to apply to non-contentious procedure concludethe disputes of shareholders’ rights, the disputes of convening shareholders’meetings, judicial dismissal of directors, disputes about the price of the shares of thedissenting shareholders appraisal rights, disputes about dissolution and liquidation ofcompany. With regard to the establishment of corporate non-contentious procedureunder procedural law, it is necessary to set up the special civil non-contentiousprocedure despite the civil procedural law in force, stipulating the fundamentaloperation principles which mainly include legislation method, legislation system,jurisdiction, judicial level and judgment method ect. It shall also consider the specialrules with respect to the corporate non-contentious procedure under the commercialnon-contentious procedure part, which thereafter forms a legal framework system that can be independently applied. Meanwhile, the non-litigation-based of litigation casesand the interchangeable application of non-contentious procedure and litigationprocedure, which are actually the integration of non-contentious, take place quiteoften in judicial practice whit its significant rationality.