Judicial Intervention In The Resolution Of The Shareholders' Meeting

In recent years,disputes over resolutions of the shareholders' meeting have emerged in an endless stream.Issues such as the failure to convene a shareholder meeting and make a resolution after the convening have always interfered with the company's operations.Although the company law stipulates that shareholders can use the lawsuit to provide relief.The Provisions of the Supreme People's Court on the Application of the Company Law of the People's Republic of China(4)(hereinafter referred to as the “Judicial Interpretation of the Company Law(4)”)was also adopted by the Supreme People's Court Judicial Committee on December 5,2016.The meeting was passed and will be implemented from September 1,2017,and the judicial relief system for disputes resolved by the shareholders' meeting will be improved.However,in practice,there are still some issues that remain unresolved.In this regard,this article takes the practice status of judicial intervention in the resolution of shareholders' meeting as the starting point,and puts forward four major questions: First,why should the judicial intervention in the resolution of the shareholders' meeting and the premise of intervention;Second,the type of shackles that need to be faced when judicial intervention And how to grasp the criteria for effectiveness judgment;third,how to grasp the procedural issues during the intervention,that is,the resolution of the resolution of the shareholder's meeting and the litigation system;Fourth,the judicial intervention in the resolution of the shareholders' meeting,where is the disadvantage,how to prevent it.Specifically,the main contents include:Chapter one,judicial intervention in the shareholders' meeting resolution defects dispute status.This chapter counts 396 sample cases from 2018.This sample case covers more than a dozen provinces and cities such as Beijing,guangdong,henan and sichuan from the level of trial,covering the first trial,second trial and retrial,and to some extent can roughly represent the practice of the shareholders' meeting resolution dispute litigation since the implementation of the judicial interpretation of company law(iv).On this basis,this chapter combs and analyzes the litigation subject,litigation claim,dispute focus,judge's point of view and other contents of the above sample cases,and extracts the common defects in the shareholders' meeting resolutions,including: 1.2.The meeting is held,but there are defects in the convening right,notification procedure and voting procedure.And the above common types of disputes supplemented by representative cases to support.However,in the face of the same flaw,the judge's judgment results are different.Taking "imposter and forged signature" as an example,this paper elaborates on the way of thinking and judgment thinking of the judge when determining invalid in this case mainly from the following aspects: 1.The act is not the true expression of the shareholders' will,and it violates the provisions of the general provisions of the civil law on civil juristic ACTS,so it is invalid;2.2.The act infringes upon the rights and interests of shareholders(such as the right of preemption,the right to subscribe for capital contribution,and the right of shareholders to know,etc.),so it is invalid;3.Make an invalid judgment on the grounds that "impostor and forged signature" is illegal without giving a positive explanation.This proves that even if the situation is similar,different judges' understanding and application of the law will lead to different judgment results and ultimately affect the interests of the parties.On the basis of the above sample case analysis,the third section summarizes three problems in the current situation of the shareholders' resolution dispute litigation: first,the validity of the resolution is different;Secondly,in practice,the type of resolution is not uniform;Third,the shareholders' meeting resolution proceedings are not standard.It provides the problem foundation for the follow-up research on the judgment steps and criteria of the resolution effectiveness of the shareholders' meeting.Chapter two,the judicial intervention in the shareholders' meeting resolutions,the basic position of the dispute.The question to be answered in this chapter is: why the judiciary should intervene in the resolutions of the shareholders' meeting and the premise of intervention.To this end,this chapter first introduces the legal nature of the resolution of the shareholders' meeting,and points out that the resolution of the shareholders' meeting is a kind of legal act,and its essence is to extend to the social resolutions in the field of commercial law,so its meaning expression rules are different from general civil legal acts.Secondly,the position of the shareholder meeting in the company's overall structure determines that the shareholder meeting is the same as the "human brain",so its resolution is just as important as the "reflection center of the human body." The above two points clarify the inherent needs of judicial intervention from the perspective of shareholders' meetings and companies.On the cornerstone of the discussion in the first section,the second section demonstrates the prudent stance that judicial intervention should uphold,that is,it must play its role of relief,settling points,and grasp the reasonable limits,paying attention to corporate autonomy and judicial intervention.Find the balance point.Finally,the third section emphasizes the value and significance of the judicial intervention in the resolutions of the shareholders' meeting,not only to balance the interests of various entities within the company,to stabilize corporate governance,but also to prevent the violation of shareholder rights and safeguard the interests of the company.Chapter three,reanalysis of the resolution of the shareholders' meeting.The question to be answered in this chapter is: what disputes should the judiciary face when intervening in the resolution disputes of the shareholders' meeting and how to grasp the judgment steps and standards of the resolution effectiveness? For this reason,this chapter firstly starts from the types of resolution flaws of shareholders' meeting,and clarifies that there are "two major categories and eight minor categories" of resolution flaws of shareholders' meeting.Among them,"two major categories" of resolution flaws refer to procedural flaws and content flaws.The "eight minor categories" refer to the flaws in procedural flaws such as the right to propose,the right to call,the right to inform,the date of the meeting,the number of resolutions and the right to vote,as well as the flaws in content that violate laws and administrative regulations and violate articles of association.Comb on this basis,the analysis one by one for each kind of flaw,should hold the basis of the reality behind the law attitude and the judgment of the steps should be followed: to offer flaw and the right to convene flaw,in the case of can't heal itself,should be observed in this case the shareholders' committee resolution meets established condition(i.e.,whether the vote,is counted,etc.),if not satisfied,it is not set up the resolution;If satisfied,the resolution is valid.For notification procedure flaw is much more complicated,the need to judge according to the notice period,the content and object of the specific situation specific judgment,first of all determine whether affect the resolution,then determine whether in violation of the law and other laws and administrative rules and regulations basic principle,if not influence,violated,then the weight of the visual defects revocation or cancellation,the result of the above situation may be revoked,may be invalid or effective.As for the sufficient defects of the resolution,it is relatively clear due to the provisions of the judicial interpretation of the company law(iv),that is,it should be deemed not to be established.For the resolution with voting right defects,the primary criterion is whether the establishment requirements are met.The above points,the concrete implementation process is the content of the second and the third section.The second section clarifies the self-healing rules of resolution defects of the board of shareholders,including the same prior selfhealing of all shareholders,the in-process self-healing of dissenting shareholders' repurchase requests,and the post-process self-healing of resolution ratification and withdrawal.The third section concretized the steps and criteria for judging the effectiveness of shareholders' resolutions,and formed the flowchart of effectiveness judgment.The first step was to determine the types and contents of defects.The second step is to determine whether the self-healing rule is applicable.If it is applicable,it is a valid resolution.If not,it enters the third step.The third step is to determine whether the establishment requirements are met.If not,the resolution is not established.The fourth step is to determine whether there is an invalid situation.If there is,it is an invalid resolution.If not,it enters the fifth step.The fifth step is to grasp the severity of the defect plot,whether it has a material impact on the result,if it does not have a material impact,it does not need to consider revocable,if it has a material impact,it is a revocable resolution.This flowchart can be used in practice to some extent.Chapter four,one of the dimensions of the judicial intervention in the shareholders' meeting resolution flaw dispute: the improvement of the shareholders' meeting resolution flaw litigation system.The question to be answered in this chapter is: how to handle the procedural issues when the judiciary intervenes in the resolution disputes of the shareholders' meeting? That is,the shareholders' meeting resolution of the procedural scheme of the defect litigation system.Therefore,starting from the litigation structure of the lawsuit system and the subject qualification of the original defendant,this chapter focuses on demonstrating that the shareholders without voting rights and shareholders without voting rights still have the right to cancel the lawsuit and the reasons,and brings out the company as the most eligible defendant.On this basis,the second section discusses the issue of the court's res judicata and retroactivity in the resolution of the board of shareholders,and holds that the res judicata varies according to the reasons for the decision of dismissing the lawsuit,but in addition,the judgment should have certain legal effect on all shareholders,directors and supervisors.At the same time,the application of the bona fide third party rule in the untenable action and the exceptions and reasons in the internal relations are put forward.Finally,based on the frequent filing of effective litigation in practice,this chapter considers that effective litigation should be one of the lawsuits that determine the validity of corporate resolutions,and the court should accept and make judgment according to law.In chapter five,the second dimension of judicial intervention in the shareholders' meeting: boundary and prevention of defects.The questions to be answered in this chapter are: where are the boundaries of judicial intervention,the possible drawbacks and their precautions.To this end,this chapter proposes three basic principles,namely,the principle of stability of corporate autonomy and decision,the principle of guarantee of procedure,and the principle of discriminating between law order and legal behavior.On the basis of adhering to these three principles,this chapter considers that the problem of indiscriminate appeal and the impact on the stability of corporate governance are the drawbacks of judicial intervention in the resolution of disputes of the shareholders' meeting.To this end,the second section puts forward several measures to prevent malpractice: First,by clarifying the provisions of the prosecution period for unfounded litigation and invalid litigation,such as the three-year statute of limitations,to save the shareholders' resolution in the long run.The second and third,through the improvement of the litigation guarantee system,refine the provisions of guarantee objects and guarantees,prevent the possible impact of the provisions of the settlement,add malicious infringement liability,and point out the solution to the problem of containment.