An Empirical Study On The Questions Of Unestablished Corporate Resolution

Provisions of the Supreme People's Court on Several Issues Relating to Application of the Company Law of the People's Republic of China(IV)(hereinafter referred to as "Judicial Interpretation IV")has made the corporate resolution not established system into our field of vision.In recent years,the handling of cases in which the corporate resolutions are not established reflects the fact that there is a real need for the existence of the system of non-establishment of the corporate resolution.The company's defective resolution system of the dichotomy cannot meet the current practical needs.In addition,the case handling data of the unestablished corporate resolution disputes in recent years also shows that the resolution of the unestablished corporate resolution in the judicial practice is not perfect,and there are some problems: the nature of the company's resolution is unclear;the recognition criteria for the corporate resolution not being established are not uniform and the legal consequences of the corporate resolution not being established are not clear.First of all,in the judicial practice,different courts have different definitions of the nature of company resolutions,then the laws,values,and principles applicable when dealing with unestablished corporate resolutions disputes are not the same,which leads to differences in the outcomes of different courts.Similar cases with different judgments have often occurred.In judicial practice and theory,there are different theories about the definition of corporate resolution,but basically from the perspective of individual law.A Corporate resolution should be a legal act on a group law,which is a concept relative to individual law.In the case that the personal law is inherently flawed in solving the group phenomenon,the group law seeks to establish a legal theory that is more consistent with the essence of the group phenomenon.The corporate resolutions in the group law are procedural,reflecting the free will of the company group and having internal effectiveness.The characteristics of these group laws make us pay attention to the characteristics of the group law and the principles of the group law when dealing with the problem of unestablished corporate resolution.Second,as a legal act in private law,the company's resolution is a manifestation of private law autonomy,and its establishment should be consistent with the establishment requirements of legal acts.However,because the corporate resolution is a legal act in the group law,and the traditional legal act establishes requirements,the declaration of will,is summarized in the practice of personal law,and it is inappropriate to apply it directly to the company's resolution.Because the nonliving nature of the company's organization makes it impossible to have the same inner meaning as a natural person,the variant of declaration of will in the group law,that is,the "subject + behavior" model,becomes the key element in determining whether the company's resolution behavior is established or not.According to the procedures of the company's resolution,the convening and notifying procedures procedure,the holding procedure,and the voting procedure will have an impact on the “subject + behavior” mode.The absence of any of the “subject” elements or the “behavior” elements will lead to the failure of the company's resolution.A company resolution that meets the “subject + behavior” mode is established.In principle,it can only produce legal effects within the company.The external effect of the company's resolution must be achieved by the company's external behavior.If the company's resolution is not established,it should lead to the legal consequences of failure of its internal binding force.The internal changes made by the company's resolution should also be restored to the state before the resolution was made.However,because the company's resolution itself does not have external effects,the company's resolution is not established and will not affect third parties outside the company.The judicial practice of the system of unestablished corporate resolution allows us to realize that the system is still in the development stage in China.Although the introduction of the "Judicial Interpretation IV" makes the system of unestablished corporate resolution more applicable,in order to deal with the problem that the company's resolution is not established,the group law should still be the core analysis method,so that the system can better reflect the group attribute of the company's resolution,realize the purpose of the company's group autonomy,protect the interests of the company and shareholders and be more rational and operable in practice.