Perfecting The Resolution Procedure System Of Stockholders’ Meeting In China’s Company Law

As an independent legal person, the company also has its way to form a will like a natural person. The general meeting of stockholders is the organ of authority in a company, which acts as the brain of natural people. The meeting of stockholders make a strategic decision by convening a meeting, numerous stockholders must conform legislative procedure. Compared with other civil and commercial law, the procedure rule of the stockholders’meeting is better than bankruptcy creditors meeting and owners committee and so on. But it also exists a number of defects. First, it lacks of complete discussing process. Company law only formulate the president’s qualification and the right to address questions of stockholders. The debate process doesn’t be formulated by the discussing process. Second, the voting process lacks of some vital regulations. Company law only formulates how many stocks the stockholders must possess that the resolution can be passed by meeting, but don’t formulate how many stockholders must attend the stockholders’meeting. Besides, The exceptional exclusion of stockholders’voting right is formulated in the article 16 of the Company Law. its subject of application and extension are very single. At the same time, the voting method only include capital majority and cumulative voting. Due to different voting method may get converse result, so these voting methods are not enough. Third, the type of defective procedure is incomplete and the validity rule of resolution is undefined. Through the article 22 of the Company Law, we know the defective procedure only include gathering procedure and voting procedure, it removes the defective rule of order. Whether the defective procedure is serious or not, the validity of resolution could be canceled, legislation makes no distinction between serious defective procedure and general defective procedure. Last, legislation lacks formulating the liability of violating the procedure of resolution. The legislation and theory care about the validity of defective resolution, few scholars pay attention to research the liability of violating the procedure of resolution.The essential reason is that we wrongly define the characteristic of resolution of stockholders’meeting. Traditional theory consider the resolution of stockholders’ meeting is a legal act. Although many scholars demonstrate it is different from ordinary legal act, and create a special legal act to explain the characteristic of resolution of stockholders’ meeting, but it also doesn’t break the frame of legal act theory. This produces many negative effects:First, the legal act theory lacks of procedure theory, it only cares about the willing of stockholders, procedure is only in the edge of the theory. This makes the procedure lacking some contents. Second, the legal act advocates autonomy of will principle, the resolution advocates capital majority principle, their ideals are different. Despite the resolution of stockholders’ meeting has already established democracy principle, but voting procedure doesn’t adopt it entirely. Third, because of lacking procedural theory, the independent value of procedure is ignored by resolution, whether the defective procedure is serious or not, the validity of resolution only could be canceled. Last, the legal act theory can’t provide theoretical support for capital majority. Civil liability also emphasizes the contract liability, resolution liability is abandoned by civil liability.Consequently, in order to perfect the system of resolution of the stockholders’ meeting. The article considers we must understand the characteristic of the resolution of stockholders’ meeting correctly, adopt the form of the will of the stockholders’ meeting, take due process principle and democracy principle and independent value of procedure and resolution liability theory into the system design of resolution’s procedure.The thesis includes four parts:The first part introduces gathering procedure and discussing procedure and voting procedure and the validity of defective resolution and the liability of violating the procedure of resolution, raising the procedure has exists four problems:Both it lacks complete discussing procedure and resolution’s procedure liability. Besides, voting procedure has many defects and the type of defective procedure is not perfect and the validity of resolution is ambiguous.The second part analyses the reason about shortcoming of stockholders’meeting, and raise some new theory about improving stockholders’meeting.Some points consider the characteristic of resolution of stockholders’meeting is belonged to the legal act, leading to lack of due process theory; Democracy principle is not absorbed into voting procedure entirely, causing many faults; legal act theory ignores the independent value of procedure, leading to the legislation doesn’t distinguish the validity of serious defective procedure and ordinary defective procedure. The resolution is ignored by law and theory so that resolution’s procedural liability is not exist in anywhere. Therefore, The article adopts the form of the will of the stockholders’meeting, take the independent value of procedure theory and resolution liability theory into the system design to perfect the validity of defective procedure and add the procedure duty of resolution.The third part introduces the typical discussing procedure of foreign or Taiwan district and the type of defective procedure and the validity of resolution defects and the liability of the resolution defects. On the basis of them, the article describes the procedure’s merits and flaws of these countries and district, and propose some suggestion for our Company Law.The fourth part discusses the resolution process of stockholders’meeting should learn foreign regulation to perfect our discussing procedure; Combine with our country’s situation to learn foreign and Taiwan’s method to perfect voting procedure; Add the type of procedural flaws in Robert’s Rules of Order and distinguish different procedural flaws" validity of resolution; Learn the liability of resolution and remove the civil liability, establish the liability system of violating the resolution of stockholders’meeting’s procedure.