Research On Defect Of Shareholders' Meeting Resolution

In company limited by shares,the shareholders meeting as the highest authority and representative agency of the company,it convenes a conference in accordance with certain procedures and forms the resolution of shareholders general meeting in the voting form of majority of capital.The resolution determines the major problems in the operation of the company.When the resolution procedure or resolution content adopted by the shareholders meeting does not conform to the provisions of laws and regulations and articles of association,there will be flaws in the resolution of the shareholders meeting.The resolution flaws can be classified according to different classification methods,but procedure flaws and content flaws are the foundation and origin of other classification methods.Therefore,this paper uses the classification methods of the procedure flaws and content flaws of the resolution of shareholders meeting to expound the defective contents in the resolution of shareholders meeting.Procedure legitimacy is a fundamental and prerequisite work for the effective resolution of shareholders meeting.Procedure flaws are important expression form of the resolution flaws of shareholders meeting.The resolution procedure of shareholders meeting includes convening procedure,parliamentary procedure and voting procedure.When flaws happens to every procedure,it will affect the legal effect of the resolution of shareholders meeting.The convening procedure flaws can be subdivided into convene cause flaws,convenor flaws,conference notice and announcement flaws,etc.The parliamentary procedure flaws can be subdivided into flaws of parliamentary procedure host,flaws in the shareholder discussion and inquiry process;the voting procedure flaws can be subdivided into legal number flaws,flaws of main body of exercising voting procedure,flaws of voting procedure host and shareholders' meaning flaws,etc.The content flaws of the resolution of shareholders meeting means that the resolution of the shareholders meeting is defective in its content,so that it can't come into force of law.The content flaws of shareholders meeting are manifested that the resolution content is in the violation of laws,administration regulations and mandatory provisions of departmental regulations,and the resolution content is in violation of articles of association,as well as the resolution content is abused by the majority rule and the resolution content is beyond the authority of shareholders meeting.The current "company law" of China stipulates the procedure and content requirements of shareholders meetings separately.Procedure provisions are mainly concentrated in 100 th to 107 th articles of the current "company law".For the convening procedure,the 100 th article of "company law" stipulates the cause of the temporary convening of 6 shareholders meetings.The 101 st article stipulates the convenor of shareholders meeting,and the 1st term of 102 nd article stipulates the conference notice and announcement procedure of shareholders meeting,including notifications time,notifications mode,notifications object,notifications content,etc.For parliamentary procedure,the 101 st and 105 st article of "company law" briefly referred to the qualifications of meeting host and the right to address questions of shareholders;for the voting procedure,the 1st term of 103 rd article of "company law" make a restriction on the voting rights of self holding shares.The 2nd term of 103 rd article stipulates the voting rights number adopted by the resolution of shareholders meeting,and the 107 th article also makes the relevant rules to the meeting records of shareholders meeting and the signature book of shareholders and the authorization letter of agent attendance.As for the resolution content of shareholders meeting,the 22 nd article of "company law" stipulates that the resolution content of shareholders meeting can not be in violation of laws,administration regulations and articles of association;the 37 th and 99 th article stipulates the power of shareholders meeting,and the resolution content of shareholders meeting shall not exceed the limits of the above terms of reference;the 2nd term of 102 nd article stipulates that the temporary proposal content for shareholders meeting shall not exceed the scope of the power of the shareholders meeting.The 104 th article stipulates items that must be voted by shareholders meeting.When there are procedure flaws and content flaws in the resolution of shareholders meeting,the 22 nd article of "company law" and the 1st and 6st article of "judicial interpretation four of company law" stipulate the remedies method.At present,our country has formed three kinds of lawsuit remedies methods,which are the acquittal of company resolution,the revocation of company resolution and the invalid of company resolution.The above provisions are the legislative status of the resolutions of our shareholders meeting,but there are still some problems in the law-making stipulation of the above resolutions of shareholders meeting.In terms of procedure stipulation,the Company Law of the People's Republic of China has not made specific requirements for the details of the convening notice of shareholders meeting for the convening procedure.For the parliamentary procedure,the "Company Law" of the People's Republic of China has hardly made a provision,and the qualification of the meeting hosts is only briefly mentioned in the 101 st article.The 150 th article briefly refers to the right to address questions of shareholders;for the voting procedure,the Company Law of the People's Republic of China doesn't stipulate the legal attendance proportion of shareholders and the shareholding of the participant shareholders,that is too conventional and single for the provisions of the voting formula and the attendance way of shareholders meeting.There is no clear provisions on how to define the abstention vote of the resolution of shareholders meeting,and when the procedure is flawed,there is no relevant provisions on the resolution liability form of procedure flaws in our country's legislation.In terms of content provisions,the 1st term and 22 nd of the Company Law of the People's Republic of China is too abstract for the invalid provisions of company resolutions in violation of laws and administration regulations and is oversize for the resolutions that violate laws and regulations are all recognized as invalid.The principle on the prevention and control of majority of capital is abused,and the rules and regulations of company legislation of our country is insufficient.In terms of the remedies of resolution flaws,there are no provisions on the methods of non-litigation remedies in the current legislation of our country;at the same time,the provisions of the litigation system are not perfect.The "etc." word in the 1st article of "judicial interpretation four of company law" makes the plaintiff subject in the acquittal and invalid of the resolutions of shareholders meeting unclear.At the same time,the provisions of the litigation guarantee system are not specific,and there are no provisions on the system of rule of injunction in the legislation of our country.In view of the above problems,this paper puts forward the corresponding suggestions.In order to improve the convening procedure of shareholders meeting,this paper puts forward important resolution matters to describe the topic content in the resolution notification,particularly.For the parliamentary procedure of the shareholders meeting,this paper puts forward the proposals,such as establishing the speaker system of the shareholders' meeting,setting the debate link of the meeting and perfecting the provisions of shareholders' right to address questions and so on.For the improvement of the voting procedure of the shareholders' meeting,this paper puts forward and stipulates the minimum quorum number and the lowest vote share of the shareholders.It adopts the means of live video and electronic voting to innovate the way of shareholders' participation in the shareholders meeting and the voting method on the voting matters.It is clear that the " vote abstention" is counted into the total number of votes but not in the affirmative votes and puts forward to the establishment of system of assigning responsibilities on the violation of the procedure resolution.In order to perfect the content provisions of the shareholders meeting,this paper proposes to improve the 22 nd article of the "company law".The invalid scope of the resolution in violation of the laws and administrative rules is limited to the mandatory provisions in violation of the laws and administrative rules.The revocable company resolution is stipulated as the resolution content of the shareholders meeting that violates the administrative rules.At the same time,the invalid scope of the resolution of shareholders meeting should be limited.While in terms of the rules and regulations of the abuse of majority of capital,this paper puts forward some suggestions,such as restricting voting rights of majority shareholders.For the remedies system of improving resolution flaws,this paper proposes to establish a non litigation remedies method to reduce the cost of the company resolution and improve the efficiency of remedies.In the system of perfecting litigation remedies of the resolution flaws of the shareholders meeting,it clarifies the main scope of "etc." in the 1st article of "judicial interpretation four of company law".It perfects the litigation guarantee system,and makes detailed provisions on the guarantee mode and the concrete guarantee situation.If it is against the company or shareholders' legitimate rights and interests that causes irreparable losses to them,the resolution of the shareholders meeting establish the rule of injunction.The first part on the resolution flaws of the shareholders meeting is the foundation of this paper.The second part of the legislative situation and the existing problems of the resolution flaws of the shareholders meeting in our country and the proposal in the third part for improving the resolution flaws of the shareholders meeting in our country are the emphasis of the discussion.