The Ananlysis Of Resolution Potency In Company Law

The manifestation of intention theory for natural person has gradually become mature in the contemporary civil law. However, as a civil subject, company’s manifestation of intention has not aroused the recognition of the academia. With the economic development and organization flourishing, a mature and complete regulation for corporation’s manifestation of intention becomes more and more important. And the manifestation of resolution shall be regulated both in legislation and theory. The traditional theory of manifestation of intention for natural person can not be fully applied to company. Blindly pursuing the commonness of resolution as an legal act but ignoring the various features of its own is not worth the candle. Thus we shall break through the mindset for natural person and establish manifestation patterns on the basis of corporation intention in studying the organization resolution.In the first part of this paper, it studies the Company Law about the formation of resolution. Resolution is a autonomy specification formed by(General) Meeting of Shareholders or Board of Directors within the scope of laws and regulations. And such intention of shareholders or directors will be viewed as the company’s will according “law techniques” and executed by the legal representative of the company.In the study, the nature and categories of company’s intention forming department and executive department, and the authority distributions among relevant(General)Meeting of Shareholders, Board of Directors and legal representative in presenting the company intention are mentioned. The(General) Meeting of Shareholders and Board of Directors are the decision-making departments while the legalrepresentative shall only present the resolution on behalf of the company within the scope of authority and is unable to achieve fully autonomy.Resolution’s nature is mainly discussed in the second part. As an institutional product of the development of democratic autonomy, a resolution is constitute of elements of convening procedure, voting method, bill content, law and related regulations, etc. It has distinct features of corporation and organization and differs from the normal components of legal act. Resolution also adopts the principle of majority with result equally binding to the negative voters which differs from the contract action that requires a consensus declaration of will. The individuality is more than common character between resolution and legal act. So there is no practical significance to incorporate the resolution into legal act field by ignoring the fundamental differences between them. And we need to distinguish resolution and legal act, and determine the location of resolution in civil law.The third part is about the personal effect and time effect of resolution. For resolution has the feature of corporation autonomy specification, it is legally binding on the company. And due to the principle of majority and the fiduciary duty of directors, resolution is imperatively binding on shareholders, directors and other corporation members. However, as the company’s internal management decision-making documentation, is the resolution binding on the third party? On this issue, this paper carries a detailed analysis on the Company Law of Article 36 The Shareholders’ Meeting’s Authorities and Article 47 The Board of Directors’ Authorities, and determines that resolution is able to have binding force on the third party. But to maintain the stability of corporation legal relationship on the one hand,and to reduce the risk of excessive appealing on the other hand, the third party beneficiary’s enforceability shall be strictly limited.In the forth part, types of resolution defects are discussed. Resolution defects are concluded into different types in different legislation and theories in the world. In Article 22 of our Company Law, resolution defects are separated into invalid and revocable categories by a “dichotomy” pattern. Whereas, category of non-existing resolution is clearly stipulated in Japan and Korea’s national laws, and such kind oftheory and judicial cases have also been widely discussed in the world. In our country, there have been judicial decisions of non-existing resolution while no major theoretic advice exists. Therefore, similar cases may have different decisions: invalid resolution or non-existing resolution. From the categorization perspective, it is necessary to make a clear conclusion and sort out the concrete causes for invalid resolution, revocable resolution and non-existing resolution. In addition, to solve the confusion in judicial practice, the standard for the qualified party of lawsuit and the litigation type shall both be defined when a resolution defect occurs.