The Study On The Rules Of Formation And Validity Of Acts Of Resolution

For the first time,the General Provisions of the Civil Law incorporated the acts of resolution into the chapter of juridical acts,and made a number of special provisions on the formation requirements,revocable circumstances,and legal consequences of the revocation.The Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(4)(hereafter this text will be abbreviated as The provisions of the Company Law(4))clearly stipulates the circumstances in which the company’s resolutions have never been formed and the legal consequences of the company’s resolution being revoked or confirmed invalid.This article intends to explore the following three issues:First,what is the nature of the acts of resolution? There are two points to this question: first,whether the acts of resolution are juridical acts and why;second,if the acts of resolution are juridical acts,what kind of juridical acts does it belong to,in other words,the problem of type attribution.In this regard,this article considers that the acts of resolution,as the special multilateral juridical acts,fully complies with the definition of juridical acts,that is,the juridical fact that consisted of declarations of will and changes the legal relations according to them.The declarations of will are to take members of the group instead of the group as parties to civil legal relations,so that it has the characteristics of multilateral juridical acts that are different from unilateral juridical acts.And its feather of majority rule also distinguishes it from the joint juridical act that requires all declarations of will to keep consistent.The nature of the special multilateral juridical acts is not only in line with the characteristics of the acts of resolution,be logically self-contained,but also has practical significance in terms of legal effects,that is,it can solve the problem of inconsistencies in declaration and will that may occur when group members act for voting.Second,what are the requirements for the formation of acts of resolution,or what are the circumstances in which acts of resolution have never been formed? There are three points to this question: first,what is the significance of the newly established system that requests confirmation of resolutions to have never been formed;second,what is the boundary between the resolutions that have never been formed and the revocable resolutions;third,the enumeration and generalization provisions were made in the Article 5 of The provisions of the Company Law(4),and the question was how to understand the enumeration situation and what other situations should fall under the "other circumstances that led to the resolutions have never been formed" stipulated in the general provisions.In this regard,this article considers that the system has independent legal significance,in addition to the practical rationality of filling the loopholes that the imperfection of invalid circumstances of resolutions.There is a difference in legal effects between the resolutions have never been formed and formed but not become valid,and there are also differences between the valid resolutions and the formed but not valid ones.For the formation of acts of resolution,it is necessary to meet: 1.The requirements of parties to legal relations-the meeting is convened by a convener entitled in form,the vital few of the meeting are not omitted,the number of people attending the meeting or the number of voting rights held meets the required number of attendance;2.The requirement of declarations of will-the number of votes of approval has reached the proportion of pass;3.The requirement of the target-there are deliberation items.As for marking the specific deliberations items in meeting notice,minutes of the meeting,etc.,they are should not be identified as the formation requirements of acts of resolution.Finally,what are the resolution’s legal effects,and what are its legal consequences if there are flaws in resolutions? There are also two points to this question: first,on whom the resolutions are binding,and how the binding forces occur;second,as for the proviso to Article 85 of General Provisions of the Civil Law and Article 6 of The provisions of the Company Law(4),Whether they are appropriate in terms of the legal consequences when there are flaws in the acts of resolution.In this regard,this article considers that the company’s resolutions have direct binding forces on the company’s shareholders,directors,supervisors,senior officers,and other employees.The binding forces are derived from the shareholders’ own intention and the existing contractual or labor contract relationship between the company and its internal staff.The company can also make the resolutions indirectly bind on the counterparty by establishing a legal relation with the counterparty in accordance with the resolutions.The resolutions directly or indirectly bind on the counterparty,have different impacts on the legal consequences when the resolutions being revoked,confirmed to have never been formed or invalid.In the former,the counterparty is of course affected by it,and in principle does not differ depending on the goodwill of the counterparty;in the latter,it does not of course affect the validity of the juridical acts performed in accordance with the resolutions.The proviso to Article 85 of General Provisions of the Civil Law and Article 6 of The provisions of the Company Law(4)have no independent significance in the case that China already has relatively complete rules of trust protection.When they are applicated,the circumstances resolutions directly bind on the counterparty should be excluded.At the same time,in order to maintain the security of market transactions,it is necessary to limit the retroactive effect of resolutions revocation,confirmed to have never been formed or invalid.