On The Non-lawsuit Relief Of The Resolution Defect Of Shareholders Meeting

Resolution of shareholders meeting, reflecting the nature of the majority rule of the company’s capital, is the common behavior of the realization of shareholders’ rights and the indication of company will. The resolution defect of shareholders meeting is any defect that can be found in the process of shareholders meeting, as well as in the meeting content, which violates either the existing legislation or the corporate governance of the company. The Corporate Law worked out the regulations related to resolution of shareholders meeting in2005despite that there are certain differences between the determination, the legal consequences, as well as the relief system of resolution defect of shareholders meeting in China and those in the developed countries with rule of law. The existing Corporate Law has a lot of blank spots especially those related to the non-lawsuit relief of resolution defect of shareholders meeting,The dissertation, by taking legislation precedents in developed countries and regions, referring to the scholars’ discussion and investigation, and integrating juridical practice of the area of the Corporate Law, analyzes the non-lawsuit relief of resolution defect of shareholders meeting and puts forwards the establishment of the regime of non-lawsuit relief resolution defect of shareholders meeting.The dissertation contains four parts. The first part elaborates the effect and the types’determination of resolution defect of shareholders meeting through analyzing the advantages and disadvantages of dichotomy and tracheotomy. Aimed at the nature of particular legal act of the resolution of shareholders meeting, this article establishes three types including the nonexistent resolution, the revocable resolution, and the null and void resolution by using tracheotomy as the theoretical foundation. The second part analyzes resolution defect’constraints and the advantages and necessity of the non-lawsuit relief, reaches the conclusion that resolution defect obeys the existence in business law, shareholders’ autonomy of will, and profit equilibrium theory. The third part, by comparing foreign legal regulations and juridical practices, discusses the specific steps and relevant applications to realize non-lawsuit relief of resolution defect, the exemption in resolution defect, spontaneous recovery in time, and the withdrawal and ratification of resolution defect. Last, this dissertation, looking into the relevant regulations and juridical practices, carries out a constructive proposal regarding the non-lawsuit relief in the resolution defect of shareholders meeting. Again, this opinion is reached by using tracheotomy as analyzing methodology and presumption.