The Research On Nonexistent Resolution Of Shareholder Meeting

As the general meeting of shareholders is the sovereign organ of the company, it is of important significance to identify the defect of resolution of shareholder meeting in performance of the resolution, operation of the company, protection of the minority shareholders and other great interest matters of the company. In the context of the "dichotomy of resolution defects" under the article22of the Company Law, there is no legal basis for the nonexistent resolution of shareholder meeting in the justice practice, which causes the legal limbo. Introducing the nonexistent resolution of shareholder meeting into the defects of resolution, establishing the reasonable theory system of the defects of resolution, and perfecting the law of resolution of shareholder meeting, is the important task in the development of the legal theory and justice practice.On the basis of legal act theory, the traditional theory possesses some senses. The theory holds this viewpoint:without profound legal basis, the "dichotomy of resolution defects" is one of empiricism legislation. According to the legal act theory, the resolution of shareholder meeting is one kind of legal act. It is different concept between the forming and execution of the legal act, as well as the resolution. The legal act is identified as the nonexistent when it is lack of establishment conditions. It is the prerequisite that there are enough establishment conditions in the resolution of shareholder meeting, or it is not necessary to confirm the resolution invalid or not. So as the new style of defects of resolution, the nonexistent resolution of shareholder meeting came up in this theoryHowever, the traditional theory simply pays attention to the declaration of will in the study of the resolution flaws of general meeting of shareholders, and ignoring the procedural characteristic of the general meeting of shareholders, which makes it hard to understand and to explain the resolution flaws, leading a variety of queries in the legal basis of nonexistent resolution of shareholder meeting. As the major procedure is closely linked with the declaration of will in the resolution of shareholder meeting, it is important to pay attention to the process of the declaration of will, and build the harmonious relationship between the will and procedure in the judgment theory of resolution flaws. Consequently, the will and procedure should be the parameters of the judgment theory of resolution flaws. As important as the declaration of will, business procedure should be a tenable important document in the forming of the resolution. According to this theory, it is appropriate to divide the defect of resolution into voidable, nonexistent and void resolution. Presenting nonexistent resolution is based on the double reason of the lacking of will and the defect of major procedure.Consequently, from the business procedure, this article expounds the necessity, rationality and feasibility of presenting the nonexistent resolution to the defect types of resolution of shareholder meeting by studying its legal basis and the forms of action. The article falls into four parts.The first part introduces the controversy between the dichotomy and trichotomy of the defect types of resolution of shareholder meeting in legislation, and presents the defect type of nonexistent resolution. Although the "dichotomy", dividing the defect resolution into voidable resolution and void resolution, is easy in the justice practice, scholars who hold the view of "trichotomy" criticize it insufficient in the legal basis and judicial application."Trichotomy" theory starts with studying the legal act nature of resolution, presents the nonexistent resolution form legal act theory, but ignores the procedural of nonexistent resolution, which makes it hard to explain the resolution flaws.The second part studies the importance of the procedural in the forming resolution, on the basis of analysis the difference between the forming resolution and ordinary legal act. Depended on the new theory of the resolution nature, analyzing the important document of will and procedural in resolution, the independent value of procedural in the resolution is proved. It is necessary to absorb the procedural theory into the resolution theory, to build the theory paying equal attention to the will and procedural. Finally, this chapter points out that presenting nonexistent resolution is based on the double reason of the lacking of will and the defect of major procedure.The third part defines the nature of the action of nonexistent resolution, and analyzes the basic parties and other elements in this action. This chapter believes that it is necessary to make the action of nonexistent resolution as one kind of confirming suit. Then it discusses the limits of plaintiffs and whether or not the company can be the defendant. Finally, comparing the limitation of the action of nonexistent resolution with scheduled period of the action of voidable resolution, this part confirms the limitation of the action.The fourth part studies the application of nonexistent resolution in the Company law of China, and the perfecting of the article22of the Company Law. This chapter advocates to change the Article22of the Company Law by adding nonexistent resolution, and presents the legal relief depend on the different nature between the limited company and stock company. Taking example of foreign legal system, the alternative dispute resolution of legal relief should be devised, and the system of security in litigation should be perfected.