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Research On The System Structure Of The Non-established Resolutions Of The General Meeting Of Shareholders

Posted on:2018-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:K R HeFull Text:PDF
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The system of a non-established resolution of the shareholders' meeting belongs to the system of a relief on the defect of a shareholders' meeting's resolution.It is a rule for the serious situation of a shareholders' meeting resolution defect,especially during the resolution-making process.In a long term,what we had in the Company Law could not fit the real situation.At the end of 2016,the Supreme Court examined and basically passed the Interpretation of Company Law IV,which stipulated the system of the shareholders' meeting's non-existent resolution for the first time.It represented that this kind of rules had established in our country.Though there is a rough frame of this system,it is important to do some researches on how to improve and apply them into practice appropriately.At the background,I used following ways,positive analysis approach and comparative analysis approach,to do some research on the topic and give my suggestions on how to improve related legislation.I hope to help build a better system of a non-existent resolution of the shareholders'meeting and the system of a relief on the defect of a shareholders' meeting's resolution in order to satisfy the practical needs.Except for the introduction and the ending parts,my paper was divided into five parts,about thirty-four thousand words in total.The main contents are as following:Firstly,the thesis analyzed the current situation and shortcomings of the related legislation.At the end of 2016,the Supreme Court examined and basically passed the Interpretation of Company Law IV,which stipulated the system of the shareholders' meeting's non-existent resolution for the first time.However,there are stills a lot of detailed problems.For example,it is unreasonable to divide non-established resolutions of the shareholders' meeting into non-existence and resolutions not in effect.And there is not a unified plan to determine whether the forged shareholders,signature needs to meet the dissatisfaction of the capital majority decision at the same time to form a non-established resolution.In the case of specific circumstances,people who have no rights to call on a meeting convening a meeting has not considered in the new rule.In addition,the inclusion of the resolution beyond the terms of reference is clearly inconsistent with the theoretical and legislative precedents.Secondly,the paper made a comparative study on the theoretical research and judicial practice of Japan,Korea,Germany and Taiwan.It was found that the non-established resolution came from practice and became rich from practice as well.However,in the process of studying the topic,our country paid more attention on theoretical logic,but ignored the specific needs of judicial practice.Besides,most of the countries or areas were tended to put forward the pleading standards clearly as their first step,and then,they might analyze the situations based on these standards.In a conclusion,when we discussed the problem in our country,we may need to focus on clearing the standards firstly.On the basis of positive analysis approach and comparative analysis approach,the thesis deeply did some researches on the pleading standards.The author argues that the non-established resolution is a system from practice.Its criteria should not be single,but should be comprehensive.It should not only consider the theoretical basis,but also think about practical needs.From the theoretical level,given that resolutions of shareholders' general meeting is a basic attribute of legal acts,as well as,a strict requirement for the procedure,the determination of the resolution not established need to take both "meaning" and "procedural" into consideration.When it comes to the practical level,it is difficult to distinguish procedural flaws as"revocable" or "not established" from the conceptual logic.Therefore the key to recognize the resolution is the seriousness of the program.Specifically,in the single case,it is necessary to make a comprehensive judgment on the basis of the remedies provided by the law and the seriousness of the defects of the resolution.If a certain type of "procedural defect" is like "content violation",seriously infringed the interests of other subjects and not enough to protect the relevant subject only to revoke,it should be identified as non-established resolutions.On the application of the non-established resolution,the article analyzed the traditional doctrine and mainstream applications in judicial practice one by one based on the above recognized standards.The author believes that the "resolution is not established" should be divided into two categories.First,the de facto resolution does not exist,mainly including the fictitious shareholders' meeting's decisions.Second,although there is a de facto resolution,the resolution is not legally determined to be established due to serious procedure problems,including the number of shareholders attending the meeting dissatisfying the statutory requirements,the resolution not meeting the requirements of the majority of capital,the fake signature of the shareholders causing the resolution not to meet the capital majority and people with no rights calling on the meeting.Finally,the article proposed some suggestions to compensate the shortcomings of the " the Interpretation of Company Law IV " in terms of the non-established resolutions.First,"the resolution does not exist" and "no effective resolution" should be merged;second,absolutely "no right to convene the meeting" should be listed as one of the circumstances of the non-established resolution;third,the signature forged should dissatisfy the capital majority requirements as well;fourth,the contents of the resolution beyond the authority of the shareholders should be invalid.
Keywords/Search Tags:resolution of shareholders' meeting, the non-established resolution, pleading standards, applications
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