Research On The Non-Established Resolution Of Sareholders' General Meeting And Its Remedy

Based on Article 22 of Corporation Law of China, resolutions of the general shareholders' meeting may contain invalid resolution and revocable resolution, these two legal consequences, however, cannot fully, effectively cover and resolve the defects of resolutions of the general meeting of shareholders such as shareholder forging resolutions beyond legal resolution procedure. Due to these defects, the meeting is regarded that has not been held legally, and accordingly, the relative resolutions not established, so no further judgement can be put on the effectiveness of the resolutions when they are non-established. Shortly, their effectiveness in law can be judged only when the resolutions of the general shareholders' meeting are existent. As for the non-established resolutions of the general meeting of shareholders, we can take the approaches from Japan and Korea as reference to establish the institution of non-established resolution of shareholders' meeting and settle the problems in legal practice brought by insufficient defect types. Non-established resolutions shall not be included in revocable resolutions or invalid resolutions on account of differences in essence among non-established resolutions, revocable resolutions and invalid resolutions, which shall be specified individually. This paper demonstrates the independence and necessity of the institution of non-established resolution of shareholders' meeting by comparing it with revocable resolutions and invalid resolutions; analyzes the main cases in different meeting-holding phases by regarding the forming process of resolutions of the general meeting of shareholders as a clue; and offers the improved legal relief approaches of resolutions of the general shareholders' meeting by building self-correcting system and litigation system.This paper can be divided into four parts besides the foreword and the peroration.First part: the discussion of legal characters of resolutions of the general shareholders' meeting. This part includes the introduction of the related points of view oftheories, the comments of each point of view, and the analysis of the characters of resolutions of the general meeting of shareholders. Resolutions of the general meeting of shareholders are the voting acts of the general shareholders' meeting to the certain matters in accordance with legal or specified regulations' procedure, whose purpose is to make a decision within the right of the general meeting of shareholders. Actually, it's the formation of company's intention which is one part of the declaration intention seen as the effective intention, not the full expression of intention as for the legal act, so it may be over-generalized if seen as the legal act. Though resolution of the general meeting of shareholders is the part of legal act not the whole legal act, civil legal act theory still has a reference value on establishment or non-establishment of resolutions of the shareholders' general meeting.Second part: the necessity of establishing the institution of non-established resolution of shareholders' meeting. In practice, for the cases of resolutions of the general meeting of shareholders with the major procedure defects over 60 days, the court most often will directly judge resolutions of the general meeting of shareholders non-established by General Rule of Civil Law Article 55 or Corporation Law Article 22. While the general meeting of shareholders itself is not the legal subject of act in General Rule of Civil Law. Besides, there are only revocable resolutions and invalid resolutions in our current Corporation Law Article 22, no non-established resolution. Non-established resolutions of the general meeting of shareholders as one type of resolution defects owns its independence, as a result, the establishing of the institution of non-established resolution of shareholders' meeting is the improvement of the system of the Corporation Law and the necessary requirements to solve our legal practice problems.Third part: the essential elements of existent resolutions of the general meeting of shareholders and main cases of non-established resolutions. The essential elements of established resolutions include the subject and the procedure. For the subject, it is the general meeting of shareholders consisting of the shareholders holding voting right; for the procedure, the key one for the formation of the general meeting of shareholders is convening procedure, which decides the legality of the formation of the general meeting of shareholders. In addition, the legality of meeting convener, notifying method and notifying content decides the legality of the formation of the main meeting subject, and the voting procedure is essential to decide the final formation of the resolution in which the voting number shall reach the legal minimum voting requirement on the shareholders' free will. If resolutions of the general meeting of shareholders shall be established, it needs the convening procedure and the voting procedure to match perfectly, otherwise, either one missing will affect the formation of the resolution. Non-established resolutions of the general meeting of shareholders can occur in the whole formation period, in which defects like convener right defect, notifying procedure defect or notifying content defect, voting number not reaching the specified minimum requirement may be the causes resulting in the non-established resolutions of the general meeting of shareholders.Forth part: the relief approaches of non-established resolutions of the general meeting of shareholders. There are two ways for non-established resolutions relief, one is company internal relief by self-remedy, the other is judicial relief by the court judicial adjudication. Company self-remedy is mainly applicable for limited liability company. When the company of less shareholders and shareholders with relevancy has the higher feasibility of remedy to resolutions, then another legal meeting among shareholders can be held to vote and form the legal resolution. However, when the court accepting and hearing the cases of non-established resolutions of the general meeting of shareholders, on the one side the parties concerned shall be confirmed whether to be correct plaintiff, defendant or the third party. The court shall know that the general meeting of shareholders itself belongs to company internal act which does not produce external legal relationship directly and its relief of rights and interests also can be obtained in other ways. To protect the benefit of shareholders and creditor, that creditor has the right to institute proceeding when resolution exists the non-established reasons shall be informed of, which contributes to protect the rights and interests of the creditor and other shareholders as well as to lessen the unnecessary loss of the company. On the other side, effective judgment limit of non-established resolutions directly affects the other interested parties' relief of their benefit; the well-meaning third party shall stick up for his legitimate interests and be give relief on his loss; the ill-willing third party with fault of damaging his own rights and interests shall be responsible for his mistake accordingly.