Research On Litigation Relief Of Board's Defective Resolution

In the modern corporate governance system,the board of directors gradually replaces the shareholders' meeting to become the core of corporate governance.Boards usually exercise corporate governance responsibilities in the form of resolutions.Along with the expansion of the power of the board of directors,the directors are controlled by the shareholders or,for their own benefit,harm the interests of the company or shareholders in the resolution of the board of directors.In order to achieve the improper purpose,the board's decision has defects,or the content flaw,or the procedure flaw,thus makes the resolution effect incomplete.The flawed decision makes the company's governance in an unstable state,but also harms the interests of third parties.Therefore,legal remedies should be given to flawed resolutions to make them work With.This paper collects,collates and analyzes the judgment documents of the board defect resolution after the implementation of the "company law interpretation four ",summarizes the differences in judicial practice,draws lessons from the relevant legislation and theories of Germany,the United States,Japan and South korea,and puts forward shallow suggestions for the improvement of the litigation relief of the board defect resolution.This article is divided into four parts,as follows:The first part contains three aspects: first,it expounds the type of board defect resolution,article 22 of the Company Law establishes two types of board defect resolution,the resolution is invalid and the resolution can be revoked.Company Law Interpretation IV introduces the type of resolution that does not hold true.At this point,China's board of directors defect resolution established a ternary relief system: invalid,revocable and untenable.The second is to analyze the procedural status of the remedy of the board of directors' defect resolution in combination with the theory of theory and the legislative provisions of our country.The third is to analyze the actual situation of the board of directors litigation relief,analyze the differences in practice,compare with the legal provisions,and then conclude the conclusion on.The second part mainly expounds the problems existing in the remedy of defect litigation at present.The Company Law Interpretation Four establishes the system of discretionary dismissal,but the principle of this regulation is strong,the discretionarypower is too large,and there may be different discretionary results in the unified matter.The Company Law of our country does not establish the system of litigation and settlement of defective resolution,but it has practical demand.There are also litigation guarantee provisions are not clear,director pursuit system abstract and other issues.The third part mainly analyzes extraterritorial legislation and doctrine.The system of discretionary dismissal established in the Interpretation of Company Law IV is drawn from Japan.Japan has made different regulations for the shareholders' meeting and the board of directors,which is different from the unified application of the two kinds of resolutions in our country.The legal guarantee of litigation originated in Germany but finally abolished the system.The change of German legislation provided a warning for the application and perfection of the legal guarantee system in China.The lawsuit settlement is Germany to deal with the flaw resolution to abuse the weapon.Through the analysis of the reasons for the abuse of litigation,the measures taken and the results achieved,the necessity and matters needing attention for the establishment of the litigation settlement system in China are analyzed.Directors The premise of accountability is the application of standards of diligence obligations.There are different applicable standards for directors' breach of obligations abroad,which provide a good reference for improving the system of directors' accountability in China.The fourth part expounds the perfect suggestion of the lawsuit remedy of the defect resolution.In this chapter,the author puts forward the judgment principle of the minor defect of the discretionary rejection and the criterion of determining whether the minor defect has substantial influence on the result of the resolution.Through the theoretical analysis and the practice demand analysis of the establishment of the settlement system in China,the paper compares the restrictive conditions of the German settlement system and the applicable conditions of the settlement of derivative litigation in the United States,and puts forward the matters needing attention to explore the settlement system.In view of the lawsuit guarantee,this paper enumerates the "malicious" inclusion in the lawsuit guarantee,and puts forward the method of calculating the guarantee cost.In the aspect of director's responsibility,clarify the three aspects of director's responsibility,and refine the responsibility Mechanisms.