Research On The Non-establishment Of Company Resolution

Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Company Law of the People's Republic of China(IV)(hereinafter referred to as "Interpretation of Company Law ?"),has established the Non-establishment of Company Resolution System in our country.This system breaks through the original invalid and revocable dichotomy mode of dealing with defects in company resolutions.On the premise of acknowledging the nature of the civil juristic act of the company resolution,a new type of resolution flaw is added.It responds to the demand of solving the dispute of the irresolution of the company in practice,strengthens the protection of the legitimate rights and interests of the minority shareholders,and is conducive to the optimization of the corporate governance structure.This paper takes the judgment documents of 187 cases in which the company resolution is not established since the Interpretation of Company Law IV was issued as the research sample,analyzes the documents,summarizes the deficiencies of the existing laws in China,and then puts forward its own suggestions,in order to provide a way of thinking for the improvement of the Non-establishment of Company Resolution System in China.The body of this article has four parts.At first,through the empirical analysis of cases of the non-establishment of company resolution,author found that at present,there are some problems in the judicial application of the non-establishment of company resolution,such as the confusion of the application of various types of validity defects,the non-unification of the external legal consequences of the non-establishment of company resolution,and the non-unification of the identification standards of the non-establishment of company resolution.Then,by analyzing the legal nature of the company's resolution,it makes clear that the legal nature of the company's resolution means a civil juristic act is not tenable,and distinguishes it from the revocable and invalid resolution.Finally,it is clear that the company's resolution was deemed tenable because of serious procedural flaws.The third part firstly discusses the five situations that the company resolution is not established according to article 5 of Interpretation of Company Law IV.The author believes that the essence of the determination standard of the non-establishment of company resolution is whether the company's declaration of will has not been formed.The resolution of the company shall not be held if the company fails to form its declaration of will due to serious procedural defects during the convening and voting of the company's meeting.Then this paper discusses the internal and external legal consequences of the failure of the resolution of the company,focuses on the analysis of the untenable lawsuit of the company's resolution,especially the plaintiff,the defendant,the third party,the time limit and the object of action.The fourth part discusses the cure of the non-establishment of company resolution,demonstrates its necessity and feasibility,and puts forward some suggestions for the cure.The author thinks that the procedural defects in the calling and convening stage of the company resolution should be allowed to be cured by the company's ratification,so as to fully guarantee the commercial convenience and efficiency.