| The Supreme People's Court's Provisions on the Application of Certain Issues in the Company Law of the People's Republic of China(S 4),which was implemented in September2017(hereinafter referred to as the “Company Law Interpretation IV”),announced from the legal level that the resolution of the shareholders' meeting of China was not established.establish.This system is a legislative initiative that the legislators have taken into account the mainstream views of the academic world,integrated domestic judicial trial cases and learned from foreign legislative experience.It broke through the classification model of the original shareholder resolution and strengthened the legality of shareholders.Although the system has been established,there are only a few articles on the relevant norms formulated by the legislators.The content that is still controversial in the academic circles is avoided,and the controversial issues are blurred,which is easy to cause confusion in the application of law.Looking back at China's academic circles,the research on this system started late,the literature is few,and a systematic and comprehensive theory has not yet been formed.It can be seen that the research on the establishment of the system by the shareholders' meeting has a large space for discussion and strong practical significance.Based on this,the author intends to analyze the legal constitution of the resolution of the shareholders' meeting,summarize the gaps in the existing laws of China,analyze the flaws in the application of the law,and then put forward their own shallow suggestions,and provide a kind of perfection for the establishment of the resolution of the shareholders' meeting of China.This paper takes the non-establishment system of the shareholders' meeting as the research object,and discusses it from four parts: the opening part analyzes the legal nature of the resolution of the shareholders' meeting and the type of resolution,and analyzes the legal composition of the non-establishment system of the shareholders' meeting.The establishment provides theoretical support.Secondly,it analyzes the legal provisions of the existing shareholders' meeting resolution system in China from the three aspects of scope of application,judicial relief and legal consequences,and summarizes three missing points.Third,it summarizes the judicial practice in China.The situation,comparing the application of the law before and after the establishment of the system,the targeted study of classic cases,and then summed up the two flaws of the law;Finally,the corresponding shortcomings put forward three types of recommendations for the improvement of the system of the shareholders' meeting in China.The first part summarizes the nature of the resolutions of the shareholders' meeting,distinguishes the types of resolutions of the shareholders' meeting,and explains the necessity of establishing a system of shareholders' resolutions.The author believes that the different theories of the type of resolutions of the shareholders' meeting in the academic community are essentially derived from the different understanding of the nature of the resolutions of the shareholders' meeting.Therefore,this part first analyzes the nature of the resolution of the shareholders' meeting,and sorts out three kinds of theories about the nature of the company's resolutions: legal behavior theory,group law theory,and procedural justification theory.It is concluded that the company's resolution is based on the principle of due process and conforms to the group law.The conclusions of the prescribed special legal acts make it possible for the existence of the resolution of the shareholders' meeting not to be established.Secondly,it sorts out the disputes of the type classification of shareholders' meetings,proposes the classification model of effectiveness and establishment,analyzes the composition of the classification,and understands the type of resolution of shareholders' meetings from different levels.Finally,based on the above theoretical analysis,it is concluded that it is necessary to establish a resolution for the shareholders' meeting.The second part mainly introduces the legislative process of the resolution of the shareholders' meeting of China,analyzes the existing legal provisions in China,and summarizes the three shortcomings.First of all,it briefly introduces the development process of China's resolutions on the shareholders' meeting and the legal provisions before and after the promulgation of the "Company Law Interpretation IV".Secondly,it expounds the specific application situation in which the law stipulates that the resolution of the shareholders' meeting is not established and summarizes the two situations in which the resolution of the shareholders' meeting does not exist and the effective resolution is not formed,and then puts forward the idea of the clauses in the article.Third,it clarifies the relevant legal provisions on judicial remedies,and analyzes the scope of the plaintiffs,defendants and third parties who filed a resolution of the shareholders' meeting and the time limit for prosecution.Fourth,based on the existing provisions on the legal consequences of the resolutions of the shareholders' meeting,it is inferred to confirm the legal consequences of internal and external resolutions after the shareholders' resolutions are not established.Finally,through the above analysis,the legal provisions of the existing shareholders' meeting resolution system are not evaluated,and the contents that need to be revised are proposed.The third part is to summarize the situation of judicial judgment in China.By analyzing the content of judicial judgment,it summarizes the shortcomings of the two laws.First of all,it summarizes the dynamic trend of the judicial practice of the establishment of the resolution of the shareholders' meeting in China,and summarizes the characteristics of the system in which the resolution is not established.Second,the case application before and after the establishment of the case comparison system emphasizes the practical value of the resolution of the shareholders' meeting.Third,based on the analysis of the two sample cases,sum up the two shortcomings in the application of judicial practice in China: the scope of application of the non-establishment system of the shareholders' meeting is not clear and the time limit for litigation is not clearly defined.The fourth part is based on the issues raised in the previous section,and proposes three types of perfect suggestions for the non-establishment of the resolution of the shareholders' meeting.First,to clarify the application of the system of non-establishment of the resolution of the shareholders' meeting,the author suggests that the requirements for the establishment of the shareholders' meeting should be stipulated in the positive direction to deal with the complexity and diversity of the resolution of the shareholders' meeting.Second,to improve the judicial remedies that the shareholders' meeting resolution is not established,the resolution of the shareholders' meeting is not established as an important part of the system and the remedy,the legal provisions are not complete,the author suggests to clarify the scope of the plaintiff that the shareholders' resolution is not established,confirm and not establish The content of the resolution is that the senior executives,employees and creditors who need to decide the remedy rights that are not established according to the resolution have the plaintiff qualification;limit the time limit for the plaintiff to sue for damages,so as to urge the plaintiff to exercise the rights and reduce the instability of the resolution.Sexuality;clarify the internal and external legal consequences of the resolution of the shareholders' meeting andestablish a system of goodwill and relatives.Finally,the author proposes to increase the non-litigation remedy method that the shareholders' meeting resolution is not established,which is in line with the characteristics of the company's private law autonomy and is conducive to the maximization of benefits. |
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