On The Judicial Intervention Of Procedural Flaw Of The Company's Resolution

Procedural flaws in the company's resolution means the lack of procedural requirements when the resolution of the company is established,and specifically include the lack of such requirements as the procedure for convening the meeting,the proportion of participants,and the final voting method.China's "Corporation Law" stipulates the litigation cancellation procedures when there is a defect in the procedure of convening or voting by shareholders in paragraph 2 of Article 22,but such a general provision is far from enough.In the individual cases,courts in different regions and tribunals have different interpretations and applications of this provision,and there is a large degree of "Different sentence with the same case" phenomena.Based on procedural flaws in the company's resolution,this paper tries to outline the basic idea of the system of judicial intervention in the procedural flaws in the company's resolution through the summary of sample data for the case and the analysis of judicial cases,and expounds the reasonable limits of the judicial intervention.In order to get a better understanding of the trial status of the flaws in the resolution procedures of our country,this paper collected and screened a number of relevant verdict documents in the "WuSong Network" and "China Institute of Applied Jurisprudence",and classified and summarized the qualified instruments,This paper has formed a data sample in order to understand recognition and review of the situation of different regions and levels of courts for procedural flaws in the company's resolution.In addition,this paper also refers to the latest Japan's "Corporation Code",and strives to learn from foreign experience actively.The author believes that the reasons for the serious differences in judicial practice,in addition to the different levels of complexity of cases,is the lack of non-litigation procedure?the lack of specific and typed about claim basis of direct suiting process and the lack of the effective incentive mechanism of derivative proceedings.Our country's "Corporation Law" and the relevant judicial interpretation is still lack of effective response to these problem.This paper seeks to put forward the corresponding suggestions in the above aspects,and conceives the general idea of the Judicial Intervention of Procedural Flaw of the Company's Resolution.This paper is divided into five parts:The first part of this thesis is the case arrangement,which summarizes the 2008-2017 cases of Procedural Flaw of the Company's Resolution published in "WuSong Network" and "China Institute of Applied Jurisprudence".the statistics of the sample cases illustrate this type of cases Judicial practice of disputes.The second part of this thesis is the reasonable analysis of the judicial intervention of procedural flaw of the company's resolution.This section adopts the method of comparative analysis,intended to illustrate three issues: the rationality of the judicial intervention of procedural flaw of the company's resolution,the inadequate of the intervention of other social intermediaries or agencies and the dual advantages of judicial intervention.Based on the status quo of judicial adjudication in our country,it shows the urgency and rationality of judicial intervention theoretically.The third part of thesis takes Japan as an example.By referring to the legislative experience of Japan's "Corporation Code" and the judgments of Japan's Supreme Court on such disputes,it actively draws lessons from the patterns and procedures of Japan's judicial intervention of procedural flaw of the company's resolution.In the fourth part of thesis,combining with the analysis of the first three parts,this paper puts forward the system construction of our country's judicial intervention of procedural flaw of the company's resolution,at the same time,it also responds to the problems appearing in the first part.This section argues that legal regulatory path on the judicial intervention of procedural flaw of the company's resolution should start from three aspects: First,try to establish an independent system of Non-litigation procedure applicable for such disputes as soon as possible;secondly,make the system of direct litigation perfect and finally enhance the stakeholders' positivity of derivative lawsuit and pay attention to preventing the occurrence of indiscriminate lawsuit through a variety of ways.The fifth part of this thesis is the conclusion.Under the premise of combining the analysis of data and the gist of cases,this part puts forward the restrictive thinking of the judicial intervention of procedural flaw of the company's resolution.