Research On Defects Of Resolution Of Shareholders' Meeting In China

The study of the defects of resolution of shareholders' meeting in our country mainly involves two aspects: one is to identify defects of resolution,that is,to ensure the extension and reasonableness of type differentiation on the basis of scientific differentiation criteria.;the other is the implementation of the legal effect after the defective resolution recognition,not only to determine the static effect of retroactivity,but also to improve the dynamic effect of the party relief.Although there are two laws and a Judicial Interpretation,General Principles of Civil Law,Company Law and Judicial Interpretation IV of Company Law,which regulate the defects of resolution of shareholders' meeting,they still can not properly solve many theoretical and practical problems,such as the determination of defects of resolution and the legal effect.Judicial Interpretation IV of Company Law newly increased the system of the nonestablishment of a resolution,which marks the type of the defects of resolution has changed from the "dichotomy" to the "three-point method".Compared with the previous "dichotomy" and the "four-point method" that appeared in the Judicial Interpretation IV of the Company Law(Draft for Comment 2016),the "three-point method" is the most reasonable.Article 134,paragraph 2,of the General Principles of Civil Law defines the act of resolution as a civil juristic act,which is first incorporated into the civil juristic act system as a type of civil juristic act.The establishment and validity of civil juristic act are two sets of concepts that must be distinguished,which are the requirements of theoretical extensibility.The adoption of the "three-part method" is not only because it can make up for the logical loopholes of the " dichotomy ",but also because the non-establishment of a resolution has independent identification criteria and system value,and there are indeed cases in judicial practice where the resolution is not established,which needs to be confirmed by legislation.Therefore,the non-establishment of a resolution is different from the invalidity of a resolution and the revocation of a resolution,and can not be replaced.Another problem in the identification of defective resolutions is the distinction criteria.The current law stipulates that it is reasonable to take procedural defects and content defects as the criteria,but it needs to be refined and perfected in order to overcome the difficulties in application.Traditional civil juristic acts are derived from personal law.They are mainly based on contracts and take the expression of intention as the core.They seldom involve procedures and emphasize what is meant or consensus.Resolution act is the product of group law,procedural justice is the root of legitimacy.Capital majority decision is the way to reach the decision.Once the group will be reached,it will be independent of the expression of individual shareholders' intention.Therefore,the resolution act can not fully apply to the traditional theory of civil juristic act,and the defect of expression of intention can not become the defective resolution.Procedure runs through the resolution behavior all the time.Procedure flaws and content flaws are the criteria for distinguishing resolutions with flaws,which not only reflects the particularity of the resolution behavior,but also distinguishes the three kinds of flawed resolution behavior.Both revocable resolution and the nonestablishment of a resolution contain procedural flaws.Therefore,enumerative legislation is adopted for the non-establishment of a resolution,and circumscribed clauses are carefully applied to clarify the scope.Resolution revocable and resolution invalid both have content flaws,so we need to clarify the specific content of illegal content,which can be different from resolution revocable,and can also delimit the boundary for the content of the articles of association.However,although the legal criteria are clear,they are not flexible enough.In order to break the rigidity and ambiguity in the application,it is necessary to introduce the criteria of interest measurement to comprehensively judge the so-called "serious","general" and "minor".Therefore,taking procedural flaws and content flaws as the main criteria,supplemented by interest measurement criteria,comprehensive differentiation criteria are scientific and feasible criteria.The current law seriously lacks provisions on the legal effect of defective resolutions of shareholders' meetings.It only stipulates that "the revocation of resolutions and the invalidity of resolutions do not affect the legal relationship established with bona fide counterparts",and nothing else.The body will of the resolution delegation of the shareholders' meeting and its binding force extend to the whole group.The legal effect of the defective resolution judgment should also be uniformly delineated.Therefore,the judgment has the res judicata and retroactivity to the world.However,in commercial disputes,maintaining transaction security is the first important.Therefore,there are exceptional rules while recognizing retroactivity,namely principle of bona fide third party.When the defective resolution is the basis of establishing civil legal relationship between the company and its counterpart,the effectiveness of the resolution is negated,whether the retroactivity and the effectiveness of the foreign legal relationship are negated,whether the counterpart is good or not should be judged,and the interests of all parties should be weighed and contrasted through interests measurement,so that the judgment can achieve the effect of maximizing benefits and minimizing losses.in addition to the static effect,we should also clarify the accountability mechanism to implement the dynamic effect,and only stop at the conclusion that it can not provide the final practical relief for the parties whose legitimate interests are damaged due to the defective resolution.Therefore,the law must stipulate the convergence norms to effectively protect the interests of the relevant subjects.In addition to litigation relief,we should improve non-litigation relief,allow self-remedy of defective resolutions,reduce litigation costs and achieve win-win situation.