| Modern countries generally stipulate the establishment of the incorporation in the form of law, including aspects of the conditions of company, established sponsor of regulation and the establishment of the incorporation procedures, in order to ensure the incorporation which is participation in socio-economic activities can achieve legal preset criteria. However, because of a variety of reasons, the establishment of the incorporation in practice may inevitably not meet legal standards, but still successfully obtain legal personality through the company registration process, then here is the occurrence of the so-called defective incorporation. A company established with the presence of defects, means that the company’s idependent personality law may not, in essence, truly established, but thinking of the company’s registration publicity system, it will show the company’s itself still owns an independent legal personality conferred. The defective incorporation thus produced up will inevitably cause a negative impact on the security market transactions; however, we can not arbitrarily take a negative attitude to all the flaws of defective incorporation, because of the complexity of its operations affect the legal relationship around the launching of a large number of stakeholders, whenever a slightest mistake turns up, it will cause disorder of market transaction order and even the social unrest.With the reform of the registered capital of the incorporation registration system. company law further reduce market access barriers, and the establishment of the company becomes more and more convenient, as declining level of State intervention could effectively promote trading efficiency, but also lead to the enormous challenges from the stability of the market economy. At this time, how to solve the problem of the current system quickly and effectively, find a balance in the conflict between different values becomes to a very prominent question for our corporate firm established and corporate law。This paper starts the study with the defective incorporation which is a common phenomenon of law in the process of establishing a company, around the the relevant legal issues of defective incorporation System. The passage is mainly divided into four parts followed:The first part just proposes the the defective incorporation judicial revocation system. The part regards the amendments to Company Law as the background, and examines the flaws of the current system of establishing:reveals the lack of the relevant provisions of the law, which is difficult to adjust effectively practice established flaws disputes; and as our new Company Law about the registered capital registration system reform, it brought a huge impact to unhealthy defective incorporation rules and concepts. When the current defective incorporation administrative revocation system can not cope with the huge challenges arising from the development of modern company law, it will be of great significance to build up the defective incorporation judicial revocation system in our country.The second part focuses on the establishment of the basic theory of the defective incorporation judicial revocation system. The exercise of the power of revocation belonged to executive authority sets against the modern concept of corporate law, and can not safeguard the rights holders’ legitimate interests, instead, regarding the court as the authority of processing defective issues seems to be a more fair choice. At the same time, giving the company registration authority to manage plaintiff qualifications is able to absorb the advantages of the current system to reduce the cost of building a new system, as well as to protect the interests of both sides to achieve the maximum in the lawsuit claimed the confrontation. Furthermore, facing the decision making between judicial revocation and judicial avoidance when dealing with the flaws in the defective incorporation, on one hand, it’s necessary to clarify the basic theory of Void and Cancel similarities and differences of these two concepts from the perspective of civil law, on the other hand, it’s also needed to fully understand the characteristics of public law showed in company law, and get to know that there will be great differences between civil law and company law when the two concepts turn up. Considering the difficulty about the exercise of the rights and disadvantages of the original administrative revocation, we recommend to take a single judicial revocation system, and deny the revocation retroactive effect to soften the impact of the market economy.The third part is to study the defective incorporation judicial revocation system in Comparative Law, and look forward what we can learn from extraterritorial experience to further build our system. common law countries which focus on the the value of efficiency adopt the principle of recognition doctrine, but the civil law countries which are in pursuit of security value adopt the principle of denying doctrine. However, both of them basically affirm judicial remedies, and reflect as much as possible to maintain the corporate personality of the convergence of values. Analysising and comparing different legal environment headed by national capital regime, we should try to learn some lessons from different set of rules, then build defective incorporation judicial revocation system.in China.The fourth part tries to structure the defective incorporation judicial revocation system in detail. Consulting specific regulations about defective incorporation in foreign countries, contacting current system flaws of China, this part firstly describes the legislative principles we must follow when structure the system. Then it put forward concrete proposals for the establishment of defective incorporation judicial revocation in our country, from the aspects of flaw emendation program, legal reasons, the subject of proceedings, aging, jurisdiction, and civil liability. Last but not the least, it proposes the corresponding amendments for the Company Law Article 198. |
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