Research On The Type Of Defects Of Resolution Effectiveness Of Company Shareholders' Meeting

Resolution of shareholders' meeting is a decision of the shareholders' will on the matters decided by the company,which is the expression of the company's will after centralization.Resolutions of shareholders' meeting arise from the expression of the will of each shareholder in the shareholders' meeting,which is a legal act.Taking the construction rule of meaning expression as the criterion of division,Resolution act is an independent type of legal act different from unilateral legal act,contract and contract act.Therefore,the rule of defective validity of legal acts can not be fully applied to the determination of the types of defective validity of shareholders' resolutions.Article 22 of the Company Law of China defines two types of defects: invalid resolution and revocable resolution.There is illegal legal logic,and can not meet the needs of judicial practice.Therefore,“the 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 "Judicial Interpretation of Company Law IV")formally affirms the three forms of defects in the validity of corporate resolutions,that is,adding new types of defects in "non-established resolutions" in order to complete the legal logic.However,in the Judicial Interpretation of Company Law IV,only five specific types of resolutions are listed,which is still unable to distinguish the boundaries of three kinds of defective forms of validity,and still unable to solve the current situation of confusion in the application of laws and regulations in judicial practice.Therefore,this paper analyses and summarizes 251 sample cases,combines the existing research results,refines the specific types of the three kinds of defects in the effectiveness of shareholders' meeting resolutions,and then forms the determination path of the effectiveness of shareholders' meeting resolutions.The specific types of resolutions of non-established resolutions include two categories: one is that the shareholders' meetings make decisions before they are convened;the other is that although the shareholders' meetings have been convened,they do not have the conditions for the establishment of resolutions.The revocable resolutions and invalid resolutions are more detailed on the basis of the existing legal provisions,which makes the types of defects in the resolution effectiveness of shareholders' meetings more complete and better serve the judicial practice.When judging the validity of shareholders' meeting resolutions,we should not only safeguard procedural justice,but also ensure commercial efficiency and maintain the stability of the company's legal relationship.This paper takes the process of holding shareholders' meeting as a clue to form a path to determine the validity of shareholders' meeting resolutions.At the convening stage:(1)If a company makes a resolution without convening a meeting,including forging a resolution of the shareholders' meeting without convening a shareholders' meeting at all,the person with convening power does not have convening power,and the company does not notify all shareholders when convening a shareholders' meeting,it is determined that the resolution is not valid.(2)Defects in the notification of holding a shareholders' meeting,including the failure of the notification to make the shareholders aware of the necessary matters for holding the meeting in a manner acceptable to the shareholders,such as in writing or in public announcement;The content of the notice is too rough and not enough detailed,which makes the shareholders miss the meeting of shareholders;Some shareholders were not notified to attend the meeting;When the notice time is too short for the meeting to be held,the shareholders are unable to make adequate preparations for the meeting,and these are revocable resolutions.(3)If the time and place of the shareholders' meeting are not in conformity with the regulations,for example,the location is too remote to allow the shareholders to be present,and the convening period violates laws,regulations or articles of association to a great extent,which makes the shareholders unable to exercise their rights,this is also the case where the resolution can be revoked.At the voting stage of the meeting:(1)If the shareholders' meeting has been convened but does not meet the conditions for the establishment of the resolution,including the fact that the shareholders did not vote on the resolution during the holding of the shareholders' meeting,some shareholders forged other shareholders' signatures to achieve their own special purposes,and the chairman of the shareholders' meeting did not confirm the result of the resolution,which made the shareholders unable to be sure of the content of the resolution,the decision is not valid.(2)If there are defects in other voting procedures,including those without voting rights,voting methods and shareholders' inquiry rights,the resolution can be revoked.At the stage of defective voting ratio at the meeting: If the voting result of the meeting does not meet the adoption ratio stipulated in the Company Law,including two cases,that is,the general majority and the special majority,the resolution will not be established.In the post-resolution phase:(1)If the content of the resolution violates the articles of association,this is the case where the resolution can be revoked.(2)If the content of the resolution violates the provisions of laws and administrative regulations,it includes three kinds of situations: the shareholders' meeting makes a resolution beyond the scope of its authority,the abuse of shareholders' rights to damage the interests of the company or other shareholders,and the abuse of shareholders' rights to damage the interests of the creditors of the company.Specifically,it includes the abuse of shareholders' rights to infringe other shareholders' preemptive rights of subscription and claim for profit distribution;The shareholders abuse their rights to infringe upon the disposition rights of other shareholders or illegally disqualify other shareholders;Shareholders abuse their rights to infringe on the preemptive rights of other shareholders;The abuse of shareholders' rights disqualifies the directors,supervisors and senior managers selected by the resolution;The shareholders abuse their rights to manipulate the shareholders' meeting to make resolutions on illegal capital reduction,illegal distribution of profits and violation of the principle of capital maintenance,which are judged to be invalid.Finally,we should see whether there is a curable possibility in the resolution of the shareholders' meeting,that is,the exemption from the defect of the resolution and the remedy for the defect of the resolution,As far as possible,we should maintain the validity of the resolution and the stability of the legal relationship of the company without damaging the substantive rights of shareholders.At the same time,we should maintain the judicial modesty and balance the autonomy of the company and the intervention of public power.Finally,when deciding the validity of shareholders' meeting resolutions according to the decision path of shareholders' meeting resolutions,we should uphold the principle of maintaining procedural justice as well as ensuring commercial efficiency and the stability of the legal relationship between the company and the public.Therefore,the relevant rules should be constrained when deciding the validity flaws of shareholders' meeting resolutions.In addition to substantive damage to the resolution of the shareholders' meeting or irreversible damage to shareholders' rights,the effectiveness of the resolution should be maintained as far as possible,and other flexible legal consequences should be adopted to remedy the damage caused to shareholders,such as making the resolution invalid in the future or compensating for the damage caused by shareholders.After typing the flaws in the resolution effectiveness of shareholders' meeting,this paper puts forward some suggestions for amending the relevant provisions in Judicial Interpretation IV of Company Law.Article 5 on the failure of a resolution should be amended to read:(1)In the first item,"the company has not convened a meeting" is amended to "the company has not convened a meeting and forged a resolution";(2)Add an enumeration of the types of defects: the convenor of a company meeting does not have the convening power;(3)To add a list of the types of defects: some of the signatures in the resolution are forged,and the shareholders or directors who are forged signatures do not approve them,and the proportion of the signatures passed after the forged signatures are removed does not meet the requirements of the Company Law or the articles of association;(4)Increase the list of one case: the chairman of the company meeting did not confirm the result of the resolution,which made the shareholders unable to know the content of the resolution.In the revocable resolutions of the shareholders' meeting,we should also increase the exemption and remedy for the defects of the resolution procedure,so as to make the decision of whether the resolution of the shareholders' meeting is revocable more accurate and complete.Regarding invalid resolutions,in the Judicial Interpretation of Company Law,the circumstances leading to the invalidity of resolutions are listed,that is,if one of the following circumstances exists in a company resolution,it shall be deemed invalid:(1)The content of the resolution goes beyond the powers of the shareholders' meeting or the shareholders' meeting or the board of directors.(2)Shareholders abuse shareholders' rights to damage the interests of the company or other shareholders by adopting resolutions;(4)Other situations where the content of the resolution violates the mandatory provisions of laws and administrative regulations.