Research On The Defects Of The Board Of Directors Resolution And Its Litigation Relief System

“The Centrism of the Board ”believes that in the modern company(especially the public company)governance,the board of directors is not only responsible for carrying out the decision of shareholders meetings or general stockholders' meeting,but also has some significant legal rights,such as operating,deciding.The board of directors as the body organs is convened by the board of directors meeting and eventually form a resolution to the exercise of power,Therefore,the importance of the board of directors is self-evident and growing.The formation process of the board of directors and the content should be in accordance with laws,administrative regulations or the articles of association.Since the 20 th century,the board has gradually replaced the shareholders' committee as the core of corporate governance structure and has become the control of the company's actual authority.The directors were controlled by shareholders because of its expansion of rights or the threaten to other shareholders' interests and companies by abusing rights.Once there are any different degrees of defects on the program or content of the decision,it should be rectified by using the rules of the relevant resolutions and imperfections in the application of law to provide judicial relief for the shareholders,directors and interests of the rights to meet the company efficient operation and development is of great significance.Nowadays,the theoretical extent and practical extent of companies around the world care less than the shareholders and the general meeting of stockholders about the board decisions.Flaws in the decision of the board of directors of the practice of processing also are more flaws relief system for reference to the shareholders' committee resolution,it is essentially a shareholder meeting center doctrine.In recent years,the dispute litigation in our country presents some problems of the decision of the board of directors,and The Companies Act in our country has the single litigation tape,the humbler relief system than other developed countries or areas.The Companies Act makes the unification stipulation about the dispute litigation for the the board of directors and the shareholders meetings.Except for this,The Companies Act doesn't have a relief system for flaws in the decision of the board of directors,which is a little ineligible for the international board of directors center doctrine legislation trend.Fortunately,the Supreme Court on December 5,2016 by the supreme people's court on some issues of applicable company law of the People's Republic of China regulations(four)"(hereinafter referred to as the" company law "judicial interpretation(four))1-12 resolution to company disputes litigation relief system perfect.In this paper,combining with Germany,Japan,South Korea and other countries legislation and theory,it has a thorougher discussion about effectiveness of the flaws of the decision of the board of directors,flaw performance and the litigation relief system by using comparative analysis,normative analysis,empirical analysis and other research methods.At the same time,based on the decision of the board of directors of the 120 cases of dispute cases on the basis of empirical analysis,this paper gives suggestions to the perfection of litigation relief system of the board of directors combining with the company law judicial interpretation(4)and relevant regulations.The article consists of four parts,a total of more than forty thousand words.The first part discusses the defects of the decision of the board of directors of types and flaw performance and validity.First of all,briefly introduces and analyzes the defect resolution effectiveness type "dichotomy","old three points method","new three points method",and to explore the pattern of "four points" in our country.Second,a more in-depth analysis of the board of directors,the enrollment procedure and resolution in the called program in the content after the formation of various defects on the performance and effectiveness.The second part gives a empirical analysis for the decision of the board of directors of the 120 cases of dispute case for.Main refining the prosecution type in the sample case,the court's decision types and each sentence types of the referee,and sample cases reflected the board of directors of main problems of the dispute lawsuit.The third part analyzes the lawsuit relief in view of the defects of the decision of the board of directors.This part combined with the company law judicial interpretation(4)the relevant provisions,and mainly discusses the suit of the board of directors and canceling the two types of actions of the eligibility of the plaintiff,the defendant,time limit,as well as the nature of the decision to cancel the suit.At the same time,this paper expounds the two propositions put forward by this paper and its reason;One is the decision of the board of directors of the directors and supervisors as cancelled in the court of the plaintiff and shall enjoy the right of revocation,the other is to make appropriate adjustments,resolution effect types will type “no effective resolution” into “resolution does not exist” type as a whole.Finally,this paper responds with a discourse on the examples of case and the questions found in the empirical analysis.