Research On Defect Effective Force Of Company Resolution

Company is the main business body engaged in market transactions in the market economy,and one of the most important subjects in the market.In order to prosper and develop our socialist market economy,we must rely on company to improve corporate governance.As the concrete basis of company's action,the flaws of company's resolution will inevitably affect the effect of company's specific implementation.Perfecting the remedy method of company's resolution's effectiveness flaws will help to properly handle disputes between shareholders,resolve internal contradictions,protect the interests of small and medium shareholders,and improve the internal governance of the company.The lawsuit of defective validity of company resolution refers to the lawsuit of the relevant subjects when the contents and procedures of the shareholders meeting and the board of directors violate laws,administrative regulations and articles of association to confirm the invalidity,invalidity and revocation of company resolution.From the type of litigation,it can be divided into invalid resolution litigation,unsuccessful resolution litigation and revocable resolution litigation.Our country's litigation system of company resolution effectiveness defects was established in the Company Law of 2005.In the Judicial Interpretation(IV)of the Company Law of 2017,its specific content was specified in detail,and the situation that the resolution was not established was added.By comparing the legislation of Germany,France,Japan,Korea,the United States and Taiwan,there are still many problems and deficiencies in the system of company resolution flaw litigation in China,which need to be further improved and developed.The construction of the system of company resolution effectiveness flaw litigation must first clarify the subject of litigation,that is,who should be qualified as the plaintiff,who should be qualified as the defendant and who can be the third party in the case;secondly,it must clarify the specific reasons for bringing various kinds of company resolution effectiveness flaw litigation;besides,it should reasonably define the interference of public power in private law.Border,establish perfect system guarantee mechanism,so that the company resolution effectiveness flaw litigation system can reasonably solve civil disputes without excessive interference in the company's autonomy.For the first issue,we should adopt a broad interpretation,regarding shareholders,directors,supervisors,senior managers,employees and creditors of the company as the plaintiffs of the company's resolution effectiveness flaw lawsuit,and the company as the defendant of the company's resolution effectiveness flaw lawsuit.As for the second issue,our country's law stipulates that the contents of company resolutions violate laws and regulations,which are invalid resolutions,and the contents of resolutions violate articles of association and the procedures of resolutions,which violate laws and regulations,as well as the articles of association are revocable resolutions.In the newly adopted judicial interpretation,the author lists four situations in which the resolution is not established,and makes a concrete analysis and definition of the connotation and extension of the cause of action for the defective effect of the company resolution,which is conducive to our more accurate application of the system of the defective effect of the company resolution litigation.In addition,in the construction and improvement of the system,the author believes that China should stipulate the relevant provisions of resolution redo,resolution immunity and resolution remedy on the basis of the current system of company resolution effectiveness flaws litigation,so as to make company resolutions more subordinate to the field of private law,reduce excessive interference of public power in company resolutions,and reduce the burden of company litigation in the Judicial Interpretation of Company Law.((4)On the basis of Article 4,a more reasonable and feasible system of discretionary rejection of revocable resolutions should be established to clarify the specific conditions under which judges can reject prosecutions and unify our judicial trials in relevant fields;in the aspect of guaranteeing the lawsuit with defective validity of company resolutions,the defendant company must have preliminary evidence to prove that the plaintiff has malicious intent of indiscriminate prosecution before applying to the court.Please let the plaintiff shareholders provide corresponding guarantees,and should also exclude the guaranteed liability of the shareholders who are both directors and supervisors of the company,so that they can better perform the responsibilities entrusted to them by the company.