Research On Legal Remedy Of Defective Resolution Of Shareholders’ Assembly

The resolution of shareholders’ assembly is formed under the capital majoritydecision rule, and then turn the declaration of intention of shareholders into thecompany’s meaning. The resolution of shareholders’ assembly is the supremeexpression of intention of limited liability Company, so it is very vital to the orderlyand effective operation of company.The defective resolution of shareholders’ assembly will influence the efficacy ofthe resolution. Mainly, it refers to the situation that the resolution of shareholders`assembly should be negatively evaluated because its procedures or contents violatethe law, the administrative regulations, or the bylaw of the company.In order to protect the lawful rights of minority shareholders, guarantee thelegitimacy and rationality of the resolution of shareholders’ assembly, and maintainthe normal effective running of the company, a vast majority of countries`in theworld provide for the cognizance of the defect of the resolution of shareholders’assembly and its remedy system in their commercial law. Especially in Germany,Japan, South Korea and some other countries, the relevant provisions of the content ofthe resolution system of shareholders’ assembly, classification of efficacy and remedyapproach are complete and systematic.In our country, Shareholders are entitled to sue the defect resolution according to article111of company law of1993. However, it did not specify the classification andprocedural rules of the defect resolution, thus lack of interoperability in practice.With the improvement of the system of the company and the rapid developmentof the market economy, the Article22of the newly revised "Company Law" In2005has confirmed the system of defects of the resolution of shareholders’ assembly.Compared to the old corporate law in1993, the new law made a great progress.The article22clearly defined the Classification of effectiveness and the legal remedy.But it only provides an incomplete pattern of the system of defects of the resolution ofshareholders’ assembly, in which some flaws still exist, such as lack of non-litigationrelief rules, the range of litigants is too narrow, and the types of litigation are notcomprehensive. These flaws will affect the credibility of the judicial judgment.Therefore, it is necessary to learn from the advanced experience of foreigncountries and institutions on the basis of these issues, and discuss the legal remedy ofdefective resolution of shareholders’ assembly in detail and make perfect proposal toachieve the protection of the legal interests of minority shareholders, and the purposeof equity equal.This paper mainly investigated the division of defective resolution efficacy indifferent legislation and explore the nature of the resolution of shareholders’ assemblyby describe the basic theory of the resolution defect of shareholders’ assembly, theformation mode and efficacy of the resolution of shareholders’ assembly; discussedthe subject and legal consequence of the resolution defect of shareholders’ assembly,and the legal remedy approach of remedy system, defective resolution could be eithercorrected by way of non-lawsuit, such as exemption, healing and remediation of theresolution defect of shareholders’ assembly, or corrected through litigation, such asfield the resolution invalid confirmation lawsuit. Then, this paper analyzed theresolution defect system of shareholders’ assembly and its legal remedy, including theclassification criteria of the resolution defect of shareholders’ assembly, the divisionof efficacy and litigation remedy.etc. Finally, this paper concluded that the lack of theresolution defect remedy system of shareholders’ assembly from the perspective of the legislative and judicial, and make reasonable proposals to improve the remedysystem. Through introducing non-litigation remedy and making reasonable proposalsto improve the litigation remedy, the company legal system could be improved andprotect the legal rights and interests of minority shareholders in the end.