The Regulation Of Defective Resolution Of The Shareholders' Meeting

The resolution of the shareholders' meeting is of significance for the formation of the intent of the company and the democratic exercise of all shareholders' rights and interests.The resolution of the shareholders' meeting,as an important tool for the realization of corporate autonomy,with the manifestation of intent as the core,with the nature of private-law,purposefulness and performance-based right,is definitely a legal act.However,the resolution of the shareholders' meeting has the features of group,commercial and procedural,whose behavior subject,formation mechanism of intent,the scope of validity and value orientation is different from those of the contract behavior and joint act,is a special type of legal act.Correspondingly,the defect of civil effect of the legal act cannot be fully applied to the resolution of the shareholders' meeting and the identification of its defects.Article 22 of the Company Law of the People's Republic of China(hereinafter referred to as"the Company Law,")stipulates two types of defects,null and void or revocable,which is contrary to legal theory and legal logic and fail to effectively satisfy the requirements of judicial practice.The resolution isn't tenable is the judgment based on the fact that the resolution does not exist,whose legal attributes,value orientation,defective character and legal effects are different from the resolution which is invalid or revoked.Therefore,the resolution isn't tenable shall be a separate type of defect,that is,the defect on establishment.The essential elements of the resolution of the shareholders' meeting shall include(1)the resolution shall be deemed to be held with the convening subject,attendees and pending items;(2)the resolution shall be deemed to be conducted as the shareholders have taken a vote and reached a definite number.The resolution of the shareholders'meeting without the tenable requisite shall be not tenable.Common reasons in judicial practice include the fact that the meeting is not actually convened or the convener is not entitled to convene the meeting,all the shareholders are not informed before the meeting,and(or)the resolution is falsified or fail to reach a majority vote provided by the law.The confirmation of the validity of the resolution of the shareholders' meeting is focused on examining whether its procedure is rigorous and impartial and whether the content conforms to the provisions of the Company Law or the articles of association of the company.The resolution can be revoked if the procedures for calling a meeting or the voting method used therein is defective,or where the content of the resolution violates the company's articles of association.The relevant provisions of article 22.2 of the Company Law are proposed to be interpreted restrictively combined with the legislative purpose.Only when the procedural defects infringe or may hinder the substantive rights of the dissenting shareholders can the resolution be sued for cancellation,to promote the autonomy and efficiency of the corporate,and to prevent the shareholders from abusing the right to revoke.With respect to the cause of invalidity of a resolution,where the pending items of the resolution is beyond the scope of authorization of the shareholder's meeting,or the resolution prejudices the interests of the creditors of the company,or seriously infringes the legal rights of other shareholders,or abuses the principle of capital majority.The modesty of the judiciary is preferred.It is reasonable to interpret the causes restrictively,that is,the content of a resolution violates the provisions relevant laws and administrative regulations with a mandatory effectiveness.When identifying the mandatory norms,the semantic recognition,typo-logical thinking and case analysis is proposed to be applied to achieve a dynamic balance between national coercion and corporate autonomy,and to soothe tensions between fairness and efficiency.