A Study On The Non-contentious Procedure Strategy Of Judicial Intervention In Corporate Governance

The separation of ownership and right of management is the result of the development of the modern company. In this mode, the goal of corporate governance is to pursue the checks and balances between ownership and right of management and the balances among shareholders. The interest game among the participants in the company has led to the emergence of corporate governance failure and running deadlock,which requires the intervention of external forces to solve.And the judicial intervention mechanism of the court has advantages.However,in some cases of disputes which involve substantive rights or legal relationship of non confrontation,single and rigid dispute mechanism induced the phenomenon of judicial failure which the traditional law theory cannot explain.For the reasons above,the article thinks that the judicial litigation mechanism in the corporate governance has certain limitations. So,the article is going to study and demonstrate the feasibility and necessity of the non contentious mechanism.The article insists of five parts:The first part focuses on the difficulties and limitations of China’s judicial intervention in corporate governance.By analyzing the general theory of corporate governance, the paper finds that the failure of corporate governance often happens and can not be avoided.So the judicial intervention in corporate governance is necessary and justified.Under the traditional concept of corporate litigation, the judicial litigation mechanism in corporate governance also has its own limitations which cannot be solved by itself.Therefore, the question whether to introduce the non contentious mechanism in corporate governance is proposed.The second part pays attention to the general legal of the non contentious mechanism in corporate governance.First of all, the article systematically describes the non contentious case and the basic concepts and features of legal principle of non contentious proceedings,which provides a legal basis to judicial litigation mechanism in corporate governance.Then, from the point of necessity and legitimacy,the articles the fitness of non contentious mechanism in corporate governance.The third part analyzes the present situation of non contentious mechanism in corporate governance from the two aspects of entity and procedure in China. Company law of the People’s Republic of China only involves two kinds of corporate non contentious case,which is the shareholder rights and corporate liquidation.And other corporate non contentious cases,such as the judicial appointment and removal of director,the holding of shareholders meeting by court,and the judicial appraisal of the objection to repurchase shares of the shareholders,is not involved.The concept of "non contentious procedure" is also not put forward in civil procedure.In another word,the non contentious mechanism is missing in corporate governance in China.The fourth part discusses from the perspective of substantive law construction involved in the corporate governance of the non contentious mechanism of China’s judicial.Discusses how to construct the non contentious mechanism of different types of corporate governance disputes which include judicial compulsory liquidation of company;the right to know the members of the company;the right to convene the shareholders’ meeting;the right to share repurchase of dissent shareholders and the judicial appointment and removal of director etc.And demonstrates the feasibility and rationality of the introduction of corporate governance of the non contentious mechanism one by one.The fifth part discusses from the perspective of procedural law construction involved in the corporate governance of the non contentious mechanism of China’s judicial.To construct the non contentious mechanism of judicial intervention in corporate governance requires that the Civil Procedure Law provides the complete procedure guarantee for solving the dispute of corporation management in many ways,which comprise clear the case acceptance criteria and decision rules for the parties to fit the case etc.