Study On The Non-establishment Resolution Of Shareholders’ Meeting

The implementation of the resolution non-establishment system indicates that the effectiveness system of defective corporate resolutions in China has achieved a step forward from "dichotomy" to "tripartite",and will play an important role in regulating corporate governance behavior and protecting the procedural and substantive rights and interests of minority shareholders.But the system is still an emerging system in our country,in terms of applicable situation still exist corresponding judicial predicament,such as the number of shareholders,did not meet the attendance,not have the right to vote,had no right to call,notice omissions shareholders program facts as a major defects such as lack of unified understanding standard,this directly affects on the cognizance of "other circumstances",which further increases the resolution is not established and revocable limit analysis of difficulty.The first step to solve this problem is to grasp the legal position of the resolution.Based on the nature of the special legal act of the resolution,majority decision is the inherent principle of the formation of the resolution,and due process guarantees the correctness of "majority decision",which together constitute the basic criteria for the establishment of the resolution.Therefore,the inexistence of the resolution falls into the category of factual judgment,which is in essence a violation of due process.Once there is a procedural flaw,it cannot be softened.However,the revocation of the resolution is a value judgment,which fundamentally violates the spirit of autonomy in private law.This article through to the resolution made theoretical discussions in the process of program defects and litigation case study,found in practice to call right person defects,notification is missing shareholder,conference held as well as the form is not in conformity with the provisions,voting flaws,whether meeting record and resolution fake reason lead to the resolution was not the understanding of the different paths,and often confuse resolution revocable.In addition,attendance and resolution ratification are often important factors in judging whether a resolution is valid or not,but there is no corresponding provision in legislation.Therefore,this paper puts forward Suggestions from the two dimensions of legislative construction and judicial judgment,that is,to improve the supporting systems of attendance and non-litigation relief.In judicial adjudication,efforts should be made to balance the relationship between due process and corporate autonomy and uphold the principle of majority decision in judicial adjudication.And resolution is not established on the basis of identify and revocable specific reason,in addition to explain the resolution was not specified in the typical reason,call right person unauthorized calls,call notice missing the agenda for a shareholders,notifications,lack and location,resolution without discuss,to not notice resolution,forge the meeting minutes and signature can be used as the resolution is not set up other causes,such as relative shall not be entitled to call for people called the agenda for a meeting notice,in violation of the time limit and methods,not clear,halfway out of shareholders,conference chair,meeting form and counting methods application flaw,resolution can be incorporated into the scope of revocable.