Research On The Unfounded System Of The Company's Resolution

The controversy over the company's resolution not to establish a system has been in existence for a long time.On August 28,2017,the Supreme People's Court formally promulgated the “Provisions of the Supreme People's Court on Several Issues concerning the Application of the Company Law of the People's Republic of China(IV)”,and established the system of corporate resolutions not established,which ended the debate on the establishment of the system.The Supreme People's Court interprets the establishment of a company's resolution without establishing a system from two aspects: First,proceeding from the interpretation of the system,the invalidity of the resolution and the repeal of the resolution are all premised on the establishment of the resolution.Unfounded resolution certainly has no legal effect,it should be implied by the company law.The second is that the "General Provisions of the Civil Law of the People's Republic of China" stipulates the company's legal person's decision-making behavior in the system of legal acts,and makes it clear that the company's resolution is a legal act.The resolution should also exist whether it is established or not and how effective it is.The Judicial Interpretation of Corporate Law(IV)established a resolution that did not establish a system and perfected China's resolution and defamation system,but the system still encountered many problems in the specific theoretical research and trial practice.If the resolution is not established and the resolution is invalid,how can it be revoked? How should the resolution not be established? Whether can a non-established resolution be cured or not and how can it be cured? The question of what kind of legal effect the resolution is unfounded requires further exploration.The nature of the company's resolution mainly includes legal actions and meaning formation.The legal actions say that the company's resolutions are regarded as the company's internal meaning expression process.The meaning formation theory refers to the company's resolutions as the meaning forming process when the company makes external intentions.Through the analysis of the nature of corporate resolutions,it is concluded that corporate resolutions are essentially corporate legal acts.They can use the theory of legal acts in civil law to divide the resolution into two aspects: whether it is established or not and whether it is valid.The fact that the company's resolution was not established and the resolution was invalid and that the resolution could be revoked was substantially different in terms of the nature and causes of the defects.The comparison and differentiation of the three parties could provide a better understanding and application of the system in which the resolution was not established.Therefore,the establishment of a unfounded resolution system has an independent institutional value for the improvement of the inadequacies of China's existing corporate decision-making system and the need to satisfy judicial practice.The situation where the company's resolution is not established is the specific criteria for judging whether the resolution is established or not.If the company law requires that a meeting must be held and a resolution is not formed before it is convened,even if all shareholders have signed it,the resolution shall not be deemed to be established and the company's law's mandatory regulations shall not be violated.The matters that can be held without meeting must satisfy the unanimous consent and signature of all shareholders.If the signature is forged,then the resolution is not established,but the fake signature can be cured after the fact that the resolution is not established.If the meeting has not voted on some of the resolutions,and some of the matters have been voted on,the resolution may be divided according to whether the resolutions can be divided or not.When calculating the number of attendances,voting rights,and voting results,the stakeholder should be excluded from the base.The resolution of the shareholder or the director to withdraw halfway will generally not affect the calculation of the number of resolutions.It is not easy to deny the company's decision not to be established and to cure as much as possible.The company can make resolutions in accordance with legal procedures against the contents of the resolutions that are not established,and can use new resolutions to cure the resolutions that are not established.It can also use resolutions to withdraw resolutions that are not established so that the purpose of eliminating resolutions can be eliminated,and signatures can also be falsified.The pursuit of ratification led to the establishment of a resolution that was not established.If the old resolution is not implemented,the new resolution will be traced back to the past;if it has already been implemented,the new resolution shall be effective upon adoption,and the party may still request the determination before the new resolution becomes effective.A resolution that does not constitute a cure can provide the company with a remedy for the defect of the resolution,which not only serves the purpose of procedural justice,but also mitigates the impact of litigation on company operating efficiency.If the resolution of the company is confirmed as not established,the company shall not be affected by the principle of distinction between commercial appearance and civil law in the internal and external aspects based on the civil legal relationship formed between the resolution and goodwill relatives.For the general matters in the company law,it only needs to be relative to good faith;for the special matters in the company law,if the company provides guarantees to the outside world,it must not only ask the relative to be a person in good faith,but also should perform the formal review of the company's resolution.Otherwise,the civil legal relationship will be affected.If a non-established resolution is implemented and damages the interests of the company,shareholders,and third parties,the wrongful shareholder or director shall bear corresponding liability for the company.The constituent elements of the liability generally include damages,damages,causation,and subjective faults.After the company compensates the third party,it may exercise its right of recourse against the wrongful shareholder or director.