Research On The Non Establishment Of Board Resolution

As a legal entity,the will of a company is expressed through the shareholders' meeting,the board of directors and the board of supervisors,and in accordance with the provisions of the company law and the articles of association.As an significant part of corporate governance architecture,the board of Directors plays a very important role in expressing the company's will.The resolution of the board of directors is an important form of carrying the will of the company,and its legitimacy and conformity in procedure and content is a hot topic in academia and practice.Articles 1,3 and 5 of the Supreme People's Court's Provisions on the Application of Several Questions of the Company Law of the People's Republic of China(IV)(hereinafter referred to as "< Company Law > Judicial Interpretation IV")stipulate the failure of a board of directors' resolution,but the criteria lists do not include all cases in which a board of directors' resolution fails to be established,so paragraph 5 of this article is used to classify the cases that have not been exhausted as "leading to the In other cases.As for paragraph 5,some scholars believe that it is only an open-ended clause and does not cover other situations.There are also scholars who believe that this paragraph "has a great imagination space",which deserves further discussion.In my opinion,the reality is much richer than the legal provisions,and from the theory and reality,I summarize several other cases where the board of directors is not established,including forged voter's signature on the resolution,the content of the resolution exceeds the authority of the board of directors,and the board's resolution of directors based on the shareholders' resolution is confirmed to be revoked or invalid.For the analysis of the criteria for the non-establishment of board resolutions,this paper is based on the specific provisions of "< Company Law > Judicial Interpretation IV" on the non-establishment of board resolutions,but not limited to these provisions.It also makes a thorough theoretical analysis of the differences between the non-establishment and revocation,invalidity and non-existence of resolutions,and then clarifies the unique criteria for the non-establishment of board resolutions.These criteria include: serious procedural flaws in board resolutions,lack of decision-making ability of board of directors,the number of voting rights of board of directors has not reached the percentage of adoption.In addition,the criteria for determining board resolutions do not distinguish between non-establishment and non-existence.After sorting out the criteria for the non-establishment of board resolutions from the perspectives of theoretical research and legislative practice,the author makes an empirical analysis on the basis of the collected cases,and determines several situations that the non-establishment of board resolutions should have in judicial adjudication.In addition,by comparing the differences between the resolutions of the board of directors and the resolutions of the shareholders' general meeting,it further clarifies some unique characteristics of the situation in which the resolutions of the board of directors are not established,such as the situation in which the resolutions of the shareholders' general meeting do not exceed the functions and powers of the shareholders' general meeting,and the situation in which the resolutions of the board of directors are not established because of the defects of the resolutions of the board of directors.After clarifying the situation that the board of directors resolution is not established,the author also summarizes some problems existing in the court's confirmation of the board of directors resolution,and puts forward corresponding suggestions.This article is divided into four parts.The legal basis of the board resolution is explored in the first chapter.The second part is to analyze the criteria of the failure of board resolutions.The third part is to summarize the specific situation of the failure of board resolutions by combining practical cases.The fourth part summarizes the difficulties of confirming the failure of board resolutions and puts forward some suggestions to these problems.The first part is the analysis of the legal basis of the failure of the board of directors resolution.Firstly,it makes an external inquiry into the non-establishment of the board of directors' resolution,and synthesizes the rationality of the theory of intention formation and the stipulation of the nature of the resolution in Article 134 of the General Principles of Civil Law.It is concluded that the non-establishment of the board of directors' resolution belongs to the stage of intention formation in theexpression of will.Secondly,the internal research on the failure of board resolution is carried out.On the basis of explaining the procedural value of the establishment stage of board resolution,the limitation of civil law in this respect is emphasized.Then the way to solve the problem of the failure of board resolution through commercial law is introduced,which is to establish the "three-part method" of the defect of the resolution,which is invalid,revocable and unsuccessful.Finally,in view of the fact that there are many differences in the situation and governance between the decision of the board of directors and the decision of the shareholders' meeting,the author analyses the value of the independent study of the decision of the board of directors from the theoretical value and practical significance.The second part is to explore the legal implication of the non-establishment standard of board resolutions on the basis of "< Company Law > Judicial Interpretation IV".Firstly,the article analyses the classification of the defects in the effectiveness of board resolutions of the "dichotomy" and "trichotomy" existing in academic circles.As the "three-part method" is more rigorous on the theoretical basis,it is difficult to be refuted,and can better meet the requirements of corporate governance in practical application,therefore,the article establishes the criteria for the division of the defects of the effectiveness of board resolutions based on the "three-part method",which divides the defects of the effectiveness of board resolutions into: invalid,revocable and unsuccessful.In view of the similarities between the non-establishment and revocation,invalidity and non-existence of resolutions,which can easily lead to confusion,the author clarifies the differences between the non-establishment of resolutions and the flaws in the effectiveness of the three resolutions,and then determines the criteria for the non-establishment of board resolutions in theory.Finally,this chapter further clarifies the criteria for determining the non-establishment of board resolutions in accordance with the provisions of "<Company Law > Judicial Interpretation IV".The third part clarifies the situation of the unsuccessful decision of the board of directors through empirical analysis on the criteria of the unsuccessful decision of the board of Directors established in the second part.The author divides the cases of unsuccessful resolutions of the board of directors into three categories: serious flaws in the convening of the board of directors,voting flaws of the board of directors and flaws in the substantive content of the board of directors.First of all,the board of directors can be divided into two situations: the number of people who have notconvened the board of directors and the board of directors does not comply with the company law or the company's articles of association.Second,the voting defects of the board of directors can be divided into two cases: the forged signature of the voters on the resolution and the non-voting on the resolution.Finally,there are three kinds of flaws in board resolutions concerning substantive content:(1)the content of the resolutions exceeds the functions of the board of directors;(2)the proportion of resolutions adopted does not conform to the provisions of the company law or articles of association;(3)the shareholders' general meeting resolutions based on board resolutions are confirmed to be invalid or revoked.In the last part of the article,the author summarizes the problems in the judicial decisions and the possible problems,and puts forward measures to improve the confirmation of the failure of the board of directors resolution.Although the failure of the board of directors resolution is a flaw in the establishment stage,there are still some substantive issues involved in its failure.For this part of substantive issues,the author believes that we should maintain the judicial apology and restraint,specifically to adhere to the "form-based" adjudication criteria,judges do a good job of "dividing matters".In addition,the author also analyzed and discussed the problems of forged signatures,such as the forgery of seals,the difference between forged signatures and unsigned signatures,and the defect treatment of forged signatures.Finally,after the board of directors' resolution is confirmed as non-establishment,the article also makes a thorough reflection on the protection of the interests of bona fides third party,and puts forward the main way to protect the interests of outsiders-referring to Article 6 of Judicial Interpretation IV of Company Law,referring to the invalidity and revocation of the resolution.To put forward some suggestions to improve the responsibility system of the board of directors is to protect the long-term interests of the company.In addition,from the perspective of internal corporate governance,the paper puts forward the Countermeasures of building internal punishment and accountability mechanism.