Research On The Effect Of The Company's Defect Resolution

Article 22 of the current Company Law of China provides the stipulate of the company resolution,which divided the defective resolution into two kinds of classifications.Provisions of the Supreme people's Court on the Application of the Company Law of the people's Republic of China(4),Article 5,adding the unestablished resolution as the third type of defective resolution.The judicial interpretation of the Company Law has formally established the three-ways classifications model of the defect of the validity of resolution in the legislative field of our country,which has made up for the deficiency of the legislation and has had an important impact on the judicial practice.However,according to the judicial practice,the judicial interpretation 4 of the Company Law still leaves a gap in the determination of the resolution defects.Therefore,the relevant issues about the validity of corporate resolutions still need to be discussed and solved.The author looks for the existing problems of the validity of corporate resolutions from the angle of judicial practice,based on the statistics and analysis of 180 cases of validity of corporate resolutions selected from 2015 to 2018 on the Jufa case website,combined with several typical cases,in order to explore the solution.First of all,the author analyzed the overall data of the case of company resolution validity.The data comes from the Jufa case website,which uses "company resolution effectiveness" as the searching keyword,from Beijing area.There are 266 cases.Because of the changes in the law,the cases which were out of date have lost their representation.The author chose 180 cases from 2015 to 2018,and analyzed the results of the trial,including the types of defects in the company's resolutions,company defect resolutions' classification and some other issues,as well as making several charts to illustration.Through the analysis of data and related charts,this paper summarizes the use of Article 22 of the Company Law and Article 5 of the Interpretation of the Company Law in judicial practice,in order to laying the groundwork for the concrete discussion below.Secondly,according to the judicial practice,the author sorted out the types of defective company resolutions and the classification of the defects,as well as the related differences between the practical classification and legislation.The company's decision represents the company's internal determinations and should not contain the flaws of content or procedural.The defect of the company resolution will not only damage the interests of the shareholders(especially the minority shareholders),but also affect the overall interests of the company.Where the contents of a companyresolution are in violation of the requirements for the establishment of an act of law or the provisions of the company law concerning the validity of a company resolution,or if the whole resolution procedure violates the provisions of the company law or the provisions of the articles of association concerning the validity of the company resolution,shows that there are defects in company resolutions,which means the types of defects in company resolutions in practice are classified mainly in content and procedure.The effect of the defective resolution caused by these two types of defects is also corresponding.Our country's legislation of the classification of the defects of company resolution has undergone the transformation from dichotomy classification to three-ways classification,that is,the unestablished resolution,the invalid resolution and the revocable resolution.Finally,the article discusses some difficult questions and how to perfect the system of the company resolution from the following three angles: the division of the company resolution,the review of the claims,the introduction of the discretionary rejection and the cure of the resolutions' defect.Through the case analysis,the author tried to explore the improved ways of the company resolution system.