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Research On The System Of Non-existed Resolutions

Posted on:2014-02-14Degree:MasterType:Thesis
Country:ChinaCandidate:L M WangFull Text:PDF
GTID:2246330395995825Subject:Economic Law
Abstract/Summary:PDF Full Text Request
The resolution of stockholders’meeting is the way for company, as a legal corporate body, to form its will, which must strictly conform to the legal regulations both in content and procedure. During the process of forming resolutions, if there occur flaws in decision making methods or voting patterns, or illegal contents appear in resolution, the resolutions will become flawed as a result. Flawed resolutions will definitely damage the interests of some stockholders and also jeopardize the legal order of company resolution system, consequently such resolutions will be voided and the reimbursement will be rendered to the impaired stockholders and other interested parties. The institutions for affirming and evaluating the flaws of resolutions and the following judicial procedures are called as resolution flaws system for stockholders’ meeting. There have two legislative modes for resolution flaws system:one is dichotomy legislative mode which divide flawed resolutions into reversible resolutions and voided resolutions, the other is trichotomy legislative mode which divide flawed resolutions into reversible resolutions, voided resolutions and non-existed resolutions. According to the article22nd of the present Company Law of China, the legislative mode adopted is dichotomy. Recently there have appeared many disputes involving flawed resolutions which beyond the range of dichotomy, and the deficiency of legislation has made judicial practice in a mess. Consequently, there have appeared voices both from academic and judicial practice fields that we should draw lessons from the trichotomy legislative mode in Japan to introduce the new type of flawed resolution, namely the non-existed resolutions, so as to cope with the demands of judicial practice. Domestic scholars usually illustrate the characters of company resolutions based on the theory of legal action in civil law, consequently under the theoretical framework of legal action the non-existed resolutions will usually be defined as invalid resolutions. This interpretation is quite different from the regulations in Japan’s Company Law, furthermore using civil law theory to interpret the business law concept of "resolutions" is inappropriate in guiding judicial practice. By drawing lessons from Japan’s legislation and relative doctrines and theories, this dissertation will inquire into the essence of company resolutions from the perspective of comparative law, and analyze the differences and influence between non-existed resolutions and invalid resolutions, based on which further propose to establish the new type of flawed resolutions in our legislation by taking reference to the concept of invalid resolutions in Japan’s company law.This dissertation consists of three parts:introduction, text and conclusion. And the text can be divided into four parts as follows.Part Ⅰ. Introducing the present researching situations on the institutions of non-existed resolutions. The main stream point in academic fields is the doctrine of legal actions, which can be best demonstrated by the "Wan Hua case" published by the supreme court of China. However the main stream doesn’t stand faultless, which can be proved by XU Shao-long case. By analyzing these two contradicting cases, this part puts forward some doubts against main stream views, and further clarifies the researching route of the dissertation.Part Ⅱ. Meticulously illustrating the legislation history, theory development and relative judicial cases about the non-existed resolutions and the following affirmation litigations in Japan. Departing from the legislation history of non-existed resolutions in Japan, this part explores the backgrounds and reasons of legislation, and introduces the discussions and arguments on this issue before and shortly after this institution was established, as well as sorts out and presents relative typical cases, so as to understand the theoretical legitimacy for non-existed resolutions in Japan.Part Ⅲ. Comparing the doctrines and cases between China and Japan and concluding the differences so as to propose the author’s views toward the theoretical foundations for non-existed resolutions and relative litigation institutions. Starting from the analysis on the nature of company resolutions, this part rebuts the mainstream view of defining resolutions as legal actions and company resolutions being lack of institutional jurisprudence foundations except for the civil theory, and further suggests that the feasible theoretical foundations to interpret the appropriate regulation in company resolutions is the unique theory in business law. Moreover, company practice can also plays an important role establishing relative institutions.Part Ⅳ. Institutions Construction. After clarifying relative theories, by drawing lessons from the researching fruits and judicial practice experience in Japan and basing on the problems appearing in company law practice in China, this part proposes author’s views in establishing the non-existed resolutions institution in China.
Keywords/Search Tags:non-existed Resolutions, invalid Resolutions, comparison betweenChina and Japan, special legal basis
PDF Full Text Request
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