Study On Legal Institution Of Non-Established Resolution Of Shareholders’ Meeting

Shareholders’ meeting is the highest decision-making organ of a corporation, is a place for shareholders to control and intervene vital resolution matters of a corporation as owners, given the importance of the resolution of the shareholders’ meeting, the laws of countries（regions） all set regulations about its content and procedures. The Company Law of our country has expressly provided institution of invalid resolution and institution of revocable resolution, this sort mode through defect, basically follows a logical formalism, make resolution illegal because of defect in content classified as invalid resolution, the resolution because the situation of illegality and procedural flaws classified as resolution revocable, surely, revocable resolution includes the content of resolution violate corporation’s constitution. However, this provision does not meet the needs of judicial practice, sometimes leading to the same case in the outcome of the trial between the different courts different, such as forged resolution of shareholders’ meeting, some judges believe that the forgery of a procedural violation of the law finds that it is a revocable resolution, some judges believe that it is an invalid resolution, or it is a course of invalid, but because there is no defect of the law itself, make it invalid is very hard. Some judges believe that the forged resolution lack of basic facts and resolution as its established requirements,so it is non-established, but the law of our country does not have non-established resolution of shareholders’ meeting, it is hard to apply our company law. So, there has defect that our company law doesn’t have non-established resolution, set up non-established resolution of shareholders’ meeting is vital in theory and in judicial practice.Compared with Taiwan, Germany, Japan and South Korea, the non-established resolution of which are mature in theory and express in practice, the theory of non-established resolution of us is very shallow, and there often has different in trial, our company law even doesn’t include it. On the basis of comparative legislation of those countries or regions, doctrine or practice on the trial, the article tries to appeal to set up the non-established resolution. Basic on our company law, invalid resolution applies to defect in content, it is clear and reasonable,and can provide a standard reference for the administration of justice. But when there is defect in procedure, only make defect in convening and voting be revocable, doesn’t have specific provisions, doesn’t distinguish between the extent of illegal, making it hard to interpretation in theory and practice. Although there are discussion about on-established resolution these years, scholars compare resolution of shareholders’ meeting with legal acts, then hold the view that non-established resolution should apply to the situations that forgery resolution and people do not have the right to convene a meeting convened, not notice the shareholders who have most or more capital, and make a decision in violation of the majority principle that should apply to institution of non-established resolution.I think that, although non-established resolution has its own legal value, but we shouldn’t make it too broad, so we should set up the institution compactly, make sure that only the forgery resolution and not noticing the shareholders who have most or more capital can apply to the institution of non-established resolution.