A Legal Research On The Non-contentious Procedure Strategy Of Judicial Intervention Into Corporate Governance

The corporate system, like the feudalism in the past, is deemed as an important social system, allocating powers, accountabilities and interests of a company. Since its beginning and through its development, the corporate governance is always an issue. In aspect of the external governance, compared with that of the Government or the Gatekeeper, the Court’s Judicial Intervention Strategy is the last defense to solve company governance disputes and protect the rights of shareholders, the company and other parties concerned. In general, the market, the government and the gatekeeper can fail, but the court cannot. However, in the field of corporate governance by law in China, in dealing with some type of corporate governance disputes with non-contentious rights or non-confrontational relationship, the courts (the Judicial Litigation Procedure Strategy) have undergone the failure which traditional legal theory cannot explain. Namely, the traditional legal theory, such as the theory of substantive legal improvement, the theory of procedural legal improvement and the theory of legal explanation, has not regarded the failure of the judicial intervention in corporate governance as a theoretical issue and made a convincing explanation for it. Therefore, from the invention of jurisdiction to the approaches and limitation for the corporate governance, this thesis will offer an analysis and an in-depth discussion about it, making specific legal theoretical strategy out of the abstracted principle of corporate governance and the principle of limited the intervention of the state in the corporate operation. The basic view of the legal strategy theory is "for the strong controversial or the antagonistic type of corporate governance disputes, the Judicial Litigation Procedure Strategy is more adequate and suitable on the judicial intervention into corporate governance; For the others, the Judicial Non-Contentious Procedure Strategy is more effective and appropriate", which is the main idea of the thesis.This thesis aims mainly at an interdisciplinary research from both the corporate law and civil procedure law instead of the improvement of legislation. Therefore, there are two "main lines":as far as the content is concerned, the theoretical hypotheses (the failure of Chinese judicial intervention into corporate governance) is discovered and put forward. The reason thereof is analyzed from the cases. On the basis of that, as a focal theory of the thesis, the non-contentious procedure strategy, as a counterpart of the judicial litigation procedure strategy, is put forward based on the principle of the active and limited jurisdiction intervention into corporate governance while respecting self-governance of corporate. This extends the academic research fields in both corporate law and civil procedure law and creates a series of new concepts, such as the(corporate) judicial non-contentious procedure strategy theoretical system, the third road of judicial intervention and the categorization of non-contentious matters (Matiere gracieuse).etc; As far as the method is concerned, this paper does research on the approach and limit of the judicial intervention into corporate governance on the basis of the fact, domestic situations and reasons underlying the phenomena. The Analytical paradigm is combined with induction (from empirical facts to theory) and deduction (from the theory to application). Based on that, the thesis is composed of the following parts:1. An issue is the basis and pre-condition of scientific research. The preface introduces the theoretical hypotheses:failure of the judicial intervention into corporate governance occurs widely in the judicial practice in China, which are firstly discovered from two types of classic cases (the shareholders’knowledge of publicly-held corporation and closely-held corporation) and it puts forward the main thesis which needs to be proved as follows.2. The failure of judicial intervention into corporate governance in China does not only exist in individual cases but is a common phenomenon in judicial practice. The causes are multifaceted, multi-leveled and multi-factored. It is the root cause that the irreconcilable contradictions exist between the unity and limitation of the dispute resolution strategy and the diversity and particularity of the corporate governance disputes."The vigor of law is in the experience". Based on experience and facts, this part shows that the above-mentioned failure is common, by analyzing more types of corporate governance disputes. Different methods of interpretation of functional analysis, normative analysis, sociology of law analysis, economics of law analysis are used to interpret the reasons underlying the phenomena. And the special reasons are emphasized to interpret the occurrence in China.3. To cure such failure of judicial intervention into corporate governance, the theory of judicial non-contentious procedure strategy is supposed to draw out and make sense."The vigor of law is also closely related to the logic." As a focal theory of the thesis, the logic strategy, regarded as "a context-specific prescription", is put forward in the second part of this paper. The analysis of this part is carried out from different perspectives including both the judicial non-contentious strategy and corporate non-contentious cases, and why it should be input into Chinese legal institution and its limit and openness and so forth.4. From the comparing law method and empirical method, for some type of corporate governance disputes, the judicial non-contentious procedure strategy is an effective approach and appropriate limit of intervention."Theory is based on practice." The third part checks again the feasibility of the strategy in different types of corporate governance disputes through the empirical analysis, comparison research and legal interpretation to find out the power of interpretation of the focal theory and its limitations.5. Scholars who have a strong sense of issues argue it is the basis and pre-condition of Chinese legal strategy reformation that both the extension of legal theoretical research and the transformation of legal strategy are improved entirely in China."The sensitive ducks know first when the river becomes warm in spring." As an academic research, the research paradigm of this thesis is quite different from counterparts of others that get used to analyze an issue by "a textbook paradigm". In the last part, it puts in theory that both extension of legal theoretical research and transformation of legal strategy should be improved, which is suitable for domestic resources and legal culture in China.6. Hopefully, this thesis will make certain theoretical contributions and push forward theoretical discussion in this academic aspect in China based on the conclusion drawn from the five parts.