The Study On Defects Of Shareholders' Meeting Resolution

The shareholders' meeting is an important place for the shareholders to enforce their rights.The resolution of the shareholders' meeting is not only carrying the meaning of the shareholders,but also representing the meaning of the company.The legal effect of the shareholders' meeting resolution has been a long-standing problem in the Company Law.When the Company Law was revised in 2005,Article 22 of the Company Law specifically stipulated the type of the defect resolution,the resolution system was enriched and perfected.But after more than a decade of judicial practice,there are a large number of cases have escaped the existing company's defect resolution mode.Article 22 of the Company Law is hard to deal with the requirements of judicial practice because of the law divide of the defect resolution with nature of the defect,which is also criticized by the academic community.Therefore,the majority of scholars have advocated that we should refer Japanese legislation,the type of the defect resolution should adopt the “three-class model”,advocated the system of defect resolution effectiveness should be based on the theory of juristic act,the effectiveness of defect resolution should be divided into two levels,if the resolution is not established,not to mention its legal evaluation.The majority of scholars think that the resolution is not exist in Japanese legislation is the same to the establishment of the resolution.The text based on the analysis of non-existence of the legislative resolution in Japanese legislation,thinking that there are huge difference between our resolution is not established with the resolution does not exist in the Japanese legislation in essence.In the Japanese legislation the resolution does not exist is a summary of the case in the judicial practice,and the starting point of our research is to ensure that the logical of the system of defects resolution,that making the establishment of the resolution become the focus of academic discussion.This text compared the types of defects in Germany with Japan on the types of defects resolution,draws the conclusion that the criteria for determining the establishment of the resolution should be based on the defect of constituent elements is a serious procedural defect or not as a general principle.The text is divided into three chapters.In the first chapter,the basic legal principles of the resolution of the shareholders 'meeting will be interpreted.Before discussing the defects of the resolution,we should have a comprehensive understanding of the shareholders' meeting.Therefore,the text made a brief introduction about the connotation of the shareholders 'meeting and the similar concepts.Secondly,expressed views on the nature of the resolution that has intense discussion in academic.In the second section of this chapter,the contents of the resolution of the shareholders' meeting are introduced.Firstly,the connotation of the defect of the resolution is defined,and the resolution is defined as the negative evaluation of the law when the resolution violates the laws and regulations or the constitution.Secondly,the value orientation of the system of resolving defects is expounded.There is a value group in each system design.There are three pairs of interest measure in the system of resolving defect: procedural justice and substantive justice,corporate autonomy and judicial intervention,efficiency and fairness.The second chapter analyzed the types of defects in Resolutions.On the types of deeds of the Resolution act,In the Academic circles have “dichotomy model”,“three-class model,“quartet model” said.Among them,the “dichotomy” and “three-class model” is the most controversial.And the legislation of Germany and Japan as a dichotomy and three legislation typical,this paper combining the legislation of the two countries found that China's resolution is not established and the Japanese resolution does not exist in essence is not the same.And put forward the judgment standard of the determination of the establishment of the resolution which is more controversial in our country.Finally,on the basis of the determination of judicial practice in the fourth section of this chapter,the flaws of various types of defects are discussed respectively.The third chapter simply discusses the relief system of the resolution,which is divided into litigation relief and non-litigation relief.The main contents of the litigation relief can be dismissed,the resolution is invalid,and the parties who fail to set up three types of litigation,whether the guarantee system can play a role in the fight against abuse.In the case of non-litigation relief,it is important to examine whether procedural flaws can be cured in a particular situation.