The Research On The System Of Non-existed Company Resolutions

Article 22 of China's Company Law stipulates that the two types of defects of the Company's resolutions-content defects and procedural defects,corresponding to the two types of defects to form two state of effectiveness-resolution is invalid and resolution can be revoked,this is the company resolution of the flaw type "dichotomy" of the legislative model,at present,Germany,China's Taiwan region are using this model.Company resolution is a legal act in nature,Legal act must have the establishment and effective elements,"dichotomy" is based on the existence of a company resolution,but as a legal act,when the establishment elements do not have,the company's resolutions has the possibility of non-existence.In the judicial practice,there are many cases that do not exist,in the existing legal framework for the lack of clear legal provisions of this situation,there are difficulties in the application of the law,the parties difficult to get effective relief.In view of the limitation of "dichotomy",Japan,South Korea adopted the "three points" legislative model,that is,in addition to the resolution invalid and revocable resolution,the establishment of the resolution does not exist system,which not only solve the theoretical Dilemma,but also adapted to the reality needs.Judicial practice and theory have an objective need for the establishment of the system of company resolution non-existence.The Supreme People's Court promulgated the provisions of the Supreme People's Court on Several Issues about the application of the company law of the people's Republic of China(four)(April 12,2016)(Exposure Draft),which make specific provisions on the system of company resolution non-existence,established the possibility of introducing the "three-point" legislative model into judicial practice.This paper analyzes the construction of the system of Corporate Resolution in China,and makes a concrete analysis of the entity and the lawsuit.It may be difficult to judge the validity of the resolution caused by the defects of the procedure,which can be judged by the matching of the remedies and the degree of damage of the rights and interests.And on the issue of abuse of rights,we need to balance the interests of the members of the company and the interests of the company,the interests of the members of the company and the interests of the third party.