Empirical Study On The Effectiveness Of Corporate Resolution Defects

In recent years,in the judicial judgment,the number of cases taking the company resolution dispute as the case is increasing,and in the future,with the continuous rise of the global economy and the rapid development of the market economy,the number of cases taking the company resolution dispute weianyou is bound to increase day by day.On April 12,2016,the supreme people's court has issued a "about some issues of applicable <> company law of the People's Republic of China regulations(four)"(draft)(hereinafter referred to as "the company law to explain four(draft)"),on August 25,2017,the supreme people's court formally issued "about applicable <company law of the People's Republic of China > the regulation of several issues(4)"(hereinafter referred to as "the company law to explain four"),whether the company law to explain four(a draft)and the company law to explain four,are fast becoming the focus of theoretical and practical circles,And that led to a lot of discussion.For a long time,in the judicial practice,the company resolution flaws disputes exist many problems,also appeared different point of view,the referee on September 1,2017 of the company law to explain four,refine the corporate resolution flaws of v.rules,make up for the deficiency of the earlier the company law legislation,but can really apply to corporate resolution severability justice in our country national condition,in the judicial practice and how there will be a new problem,need to practice to sum up.The first part of this paper is "the basic theory of corporate resolution and corporate resolution flaw",which mainly explains the basic theory of corporate resolution and the theory of the effectiveness system of corporate resolution flaw and makes a brief analysis.The nature of the company's resolution is divided into legal action theory,group legal action theory and meaning formation theory.The juristic act theory is the current general theory in the academic circle.This theory holds that the corporate resolution is a process in which two or more civil subjects jointly exercise the juristic act on the basis of their independent will.The group behavior theory holds that the resolution behavior is not the same as the traditional legal behavior,but belongs to a kind of independent legal behavior.According to the theory of meaning formation,the most obvious difference between corporate resolution and legal action is that legal action refers to the system of meaning expression,while resolution action refers to the system of meaning formation,which leads to the inconsistency of the twobehaviors.The effectiveness of corporate resolutions can be divided into internal effectiveness and external effectiveness,which have binding force on the company,shareholders,and the board of directors.The contents of corporate resolutions also have certain influence on the external third parties of specific transaction matters.Company resolution flaw mainly exists in the procedure or content,in violation of the provisions of the law or the articles of association,analogy the effectiveness of the legal behavior,corporate resolution flaws of morphology can be divided into the void,revocable,don't set up effective,four categories,therefore,that company resolution flaw effectiveness system composed of invalid,revocable only for "dichotomy";Only invalid,revocable,does not establish the constitution is "tripartite method;By invalid,revocable,do not hold water,did not take effect to constitute is "4 cent method".For "company resolution flaws in this paper,the second part of empirical research,the author statistics and research the Chinese judicial documents online in recent ten years(January 1,2008-December 31,2017),Shanghai company dispute resolution proceedings by the court verdict,covering basic,intermediate and senior court,a total of 601,statistical analysis,and combined with typical examples,from the Angle of judicial practice" dichotomy "and" three-point method ","four points method" is analyzed,the author thinks that "the rule of thirds" conforms to our country company resolution flaws dispute cases in practice.At the same time,through the empirical analysis of the revocation application cases of the court's discretion to reject the defective resolution,the author believes that the judicial interpretation of the four new provisions of the resolution discretion to reject the system has practical needs.The third part of this paper is "the perfection of the effectiveness system of corporate resolution defects".In view of the problems existing in the judicial trial of corporate resolution defects,the remaining deficiencies in the company law and the company law interpretation 4 are summarized in two aspects.First,for the resolution signature forgery cases often appears in practice,the judicial interpretation did not give enough attention,the author thinks that the judicial interpretation should be in the form of a list of its effectiveness to make specific provision,and parts for signature forgery case should see whether the proportion of conform to the requirements of the resolution and whether it effectively;Secondly,the judicial interpretation should add the defect cure system to allow the parties to cure the defects of the company resolution by themselves.For the company resolution cured through the parties' exemption,ratification,withdrawal and other means,the judicial organ should notpursue further.