Study On The Non-establishment Resolution Of Shareholders'general Meeting

Resolution is different from the meaning of the natural person as an important manifestation of corporate autonomy,which must follow the principle of majority decision and be made in the legal procedure,involving the combination of private law autonomy and due procedure as a theoretical basis of resolution effectiveness.When the foundation is shaken,the resolution effectiveness also has defects.In addition,due to the particularity of the resolution,it is impossible to apply to the legal action defect system,so the provisions over the special law should be established.In this regard,China's Company Law has standardized two types of the effectiveness defect(revocable resolution and invalid resolution),whose defects are proved by judicial practice and theoretical development,so the new judicial interpretation has adopted the non-establishment resolution system.But,there is still doubt for the application of the non-establishment resolution in theory and practice,which is the problem to solve in this paper.On the basis of practice,this paper attempts to build a judicial rule of the non-establishment resolution,consisting of four chapters.The first chapter is divided into three parts.The first part introduces the general law principle.This paper argues that a resolution is a legal act as a form of company's meaning with corresponding characters.From the group characteristic,the principle to comply with the principle of the majority decision is difficult to apply the legal act effectiveness defect theory.In addition,the resolution also has the appearance of commercial law,efficiency first,proper procedures and other characteristics.The second part discusses the effectiveness source and the content of the resolution,and clarifies the basic principles that should be followed by the resolution.The third part summarizes that the resolution effectiveness defect system and the legal act are not the same,which is specified in China's Company Law,with the adoption of the “dichotomy” legislative model.The introduction of the relevant judicial interpretation proves that the previous legislative model is in trouble,and the corresponding effectiveness defect system is established.The second chapter analyzes the non-establishment resolution system of under the “trichotomy” legislative model from the standard point of view in three parts.The first part makes a distinction taking the standard object of the invalid resolution system,the revocable resolution system and the non-establishment resolution,to divest the revocable resolution system and the non-establishment resolution.The second part distinguishes the revocable resolution system and the non-establishment resolution based on the difference in the practice attitude and the value orientation of the two systems.The third part,starting from the Company Law provisions for necessary procedures for the resolution – making,makes a preliminary analysis of the non-establishment resolution defect causes in order to discuss the independent value of the non-establishment resolution system and point out a direction for the empirical direction.The third chapter,with results in the second chapter as the research direction and the empirical research as the method,deals with the collected cases to sum up the defect causes involved in the non-establishment resolution judgment by the court.Combined with the conclusions described above,the analysis of the relevance of defect causes is carried out.This chapter is divided into four parts.The first part clarifies the defect causes in non-establishment resolution and invalid resolution.The 2-4 parts,taking convening as a logical starting point,make the analysis of defects involved in the meeting convening,the meeting holding and the meeting deciding by the timing.This chapter analysis attempts to achieve the logic self-consistency and avoid confusing defect causes,in order to determine key defects enough to determine the non-establishment resolution,which lays a foundation for the construction of the non-establishment resolution.In the fourth chapter,by referring to the judicial interpretation – related draft,the author analyzes the meaning and reason of revision and evolution of various versions,determines the most reasonable non-establishment resolution defect types,and excavates the style structure of the legislator's inner truth and judicial interpretation from the analysis.From the perspective of key establishment elements of the resolution,the author explains and clears judicial interpretation of the draft that covers the various stages of the resolution,there is no any cross among the elements,and the postposition defects are based on the preposition procedures.Accordingly,combined with the results of the third chapter,detailed defect causes are abstracted into important ones,in order to clear and enrich the application situations of judicial interpretation,and build a more perfect judicial rule of the non-establishment resolution.