Study On The Non-establishment Resolution System Of Shareholders' General Meeting

This article discusses the system of the non-establishment resolution of shareholders' general meeting,under the background of Provisions of the Supreme People's Court on the Application of the Company Law of the People's Republic of China(IV)(hereinafter referred to as The fourth Judicial Interpretation of the Company Law).Focusing on the basic theory of resolution,the theoretical and institutional basis of the non-establishment of resolution of shareholders' general meeting,and the practical status of the non-establishment system of resolution of shareholders' general meeting.This article is divided into three parts:The first chapter is a starting point of this article.First,the author discusses the nature of the resolution from the general theory of the resolution.Secondly,explores the source and basis of the validity of resolutions and clarifies the basic principles that should be followed in making resolutions.Finally,the author analyses various legislative models of resolution defects,and discusses the existing defect system of resolution effectiveness.Accordingly,this leads to the theoretical controversy of “dichotomy” and “trichotomy”,and finally return to the choice of “trichotomy”in our legislation.The second chapter analyzes the non-establishment resolution system of under the“trichotomy”from the standard point of view.The first part makes a conceptual distinction between the revocable resolution ?the non-establishment resolution and the invalid resolution,to invest the non-establishment resolution system in theory.Then,the second part,starting from the Company Law and judicial interpretation provisions for three major procedures for making the resolution—makes a detailed analysis of defect causes of the non-establishment resolution in order to discuss the independent value of the non-establishment resolution system and point out a direction for the empirical direction.The third chapter bases on the research of the second chapter.With the method of empirical research,this part sorts out and analyses the cases before and after the promulgation of the Fourth Judicial Interpretation of Company Law.First of all,this part analyses the cases before the Fourth Judicial Interpretation of Company Law,and concludes the defect causes involved in twelve non-establishment resolution.After that,taking procedure as logical starting point,summarizes the defect causes into three major procedural stage to analyze: the meeting convening,the meeting holding and the meeting deciding.Secondly,this part filters the cases after the Fourth Judicial Interpretation of Company Law and then draws three conclusions.Finally,combined with the analysis of this article,comments the Fourth Judicial Interpretation of Company Law,and makes some suggestions to avoid the non-establishment resolution.