Research About The Board Of Directors Deadlock's Relief Measures

After years of development,the company has become the most important and most active market entity in modern social market economic activities,but in the process of development,it will not only encounter external problems such as financing,competition,labor and personnel disputes,government supervision,etc.,its internal shareholders,directors There will also be a result of the management ability of the opposing company,the decline in execution capacity,adverse effects on the company,and even infringement of the interests of shareholders and directors.This phenomenon is academically called a corporate deadlock.In February 2002,after Professor Zhao Xudong published an article entitled " Judicial Relief for Corporate Deadlock”in the a People' s Court Newspaper",the domestic legal theory community began to study the corporate deadlock.The revision of the "Company Law" in 2005 provided for the first time the judicial intervention system for corporate deadlock,and the inclusion of judicial dissolution companies in the legislative scope provided a legal basis for breaking the corporate deadlock.Subsequently,the cases of judicial dissolution of the company injudicial practice appeared one after another.However,there are differences in the judgments of different places under the same circumstances,indicating that the applicability and unity of the law are flawed.The stalemate of the company is mainly due to the deadlock of the shareholders,meeting,the deadlock of the board of directors,the stalemate of the board of supervisors and other internal stalemates.The stalemate of the board of directors is increasingly concerned by the academic community as a common stalemate.The compulsory equity replacement system and the company dissolution system established by China's"Company Law,provide a path for the company's board of directors to break the deadlock on the basis of the company's deadlock method.The "Company Law Judicial Interpretation(?)" detailed and specific the judicial dissolution company.Provisions.However,these two methods are too simple and rude.This article intends to explore the following aspects in order to find a more moderate solution:The first part is an overview of the company's board stalemate,including the company's board stalemate definition,characteristics,cause analysis,and the resulting hazards.The stalemate of the company is mainly due to the deadlock of the shareholders' meeting,the stalemate of the board of directors and the stalemate of the board of supervisors.The provisions of the Supreme People's Court on the application of certain issues of the "Company Law,(2)The first article expresses the deadlock of the board of directors as "long-term conflict of directors of the company,and cannot pass the shareholders' meeting.Or the shareholders' meeting resolved,the company's operation and management has serious difficulties." The stalemate of the board of directors is an extension of the stalemate of the shareholders' meeting.Studying the reasons for its formation has special significance for solving the corporate deadlock.The reasons for the stalemate of the board of directors are institutional and non-institutional.The institutional reason is mainly because the various systems formed under the framework of China's "Company Law" can cause the analysis of the company's board stalemate.The non-institotional reasons are the reasons for the stalemate of the company's board of directors outside the scope of the "Company Law".Although the stalemate of the company's board of directors is generated within the scope of the law,it still has certain harms,including the company itself,shareholders,and employees of the company;it includes the creditors,the government and social welfare.The second part,China's board of directors deadlock relief measures in accordance with the current provisions of China's company law,summed up several ways of self-reliance and public relief:equity transfer,reduce registered capital,equity compulsory acquisition,and analyze these several ways Comments,looking for the shortcomings If the shareholders can not pass the equity transfer,reduce the registered capital to solve the company deadlock,then the only thing the law can do is to completely separate the two shareholders:one is the compulsory acquisition of equity;the second is to dissolve the company.However,the scope of application of these two statutory remedies is limited,and there are many defects.In general,the domestic board of directors has a single remedy for stalemate relief measures,lack of precautionary measures,the compulsory acquisition of equity,and the inadequacy of judicial dismissal.The third part is the investigation of relief measures for the deadlock of foreign board of directors.The company law of the United States is relatively complete,the board of directors' deadlock relief measures are relatively rich,the relief system is more mature and perfect;Germany and Japan on the shareholder delisting system more detailed norms.Through sorting out,the main remedies for the deadlock of the board of directors are:court appointment of supervisors,compulsory transfer of equity,shareholder removal,court appointment of temporary directors,court direct management company,dissolution of proceedings,etc.The theoretical circles of our country have matured to discuss the temporary directors of the company,and have made reasonable arrangements for the qualifications,rights and obligations of the temporary directors and the withdrawal mechanism.With the maturity of the independent director system of listed eompanies,it also plays a positive role in promoting the improvement of the temporary director system,and trains a large number of professional talents who can be competent for independent directors.The theoretical basis and talent pool for the establishment of temporary director system have been completed.China's compulsory share repurchase system only stipulates the withdrawal mechanism of dissenting shareholders,but it does not stipulate the removal of shareholders who are at fault in the company deadlock.It is likely that no-fault shareholders will quit the company,but the fault shareholders can continue to control the company.This result is obviously unfair,so the introduction of shareholder delisting system has great practical significance.The fourth part,the board of directors deadlock relief measures to improve the proposal.On the basis of reviewing the present situation and shortcomings of the remedies for the deadlock of the board of directors in China's company law and drawing on the advanced experience of foreign countries,this paper puts forward that China's company law should perfect the precautionary measures beforehand through the articles of association,perfect the system of the change of directors' status,including the case of the removal of directors,the action of the removal of directors and the introduction of We should improve the system of removing shareholders,compulsory acquisition of shares,and judicial dissolution.It is hoped that these suggestions can provide some help for perfecting the remedy measures for the deadlock of the board of directors in our company law.