On The Failure Of The Company's Resolution

With the development of the market economy,the company plays a very important position in the market and economic activities.The fundamental reason why the company can survival is there is a certain mechanism to support the company to act as legal person.So how to coordinate operation,effective checks and balances of company governance structure has increasingly become a major concern.The Judicial Interpretation of the Company Law of the People's Republic of China(?)has aroused wide concern and discussion in the theoretical and practical circles.Article 5 of the Judicial Interpretation of the Company Law of the People's Republic of China(?)stipulates the relevant contents of the non-establishment of company resolutions.Article 5 breaks through the relevant provisions of the Company Law of the People's Republic of China on the types of resolution flaws,and increases the types of flaws in company resolutions from the original two types of revocability and invalidity to three types of non-establishment,revocability and invalidity.This has improved our country company resolution flaw system,also is advantageous to the safeguard company shareholder's rights and interests.Although the non-establishment of company resolutions system is already applied in many parts of abroad,but as a kind of domestic new company resolution defect type,"the non-establishment of company resolutions system whether there is the necessity of its existence",the "how to distinguish with other two kinds of defects types" become the primary problem of theory and practice to discuss.Starting from the emerging defect type of non-establishment of company resolutions,this paper hopes to have a clearer understanding of the scope and nature of non-establishment of company resolutions,and based on the current problems in the application of non-establishment of company resolutions in judicial practice,it intends to further explore the methods and paths to solve their application difficulties.To be specific,this paper intends to distinguish and define the non-establishment of company resolutions from the other two types of resolution defects,clarify the constitutive conditions and identification criteria for the non-establishment of company resolutions,and lay a theoretical foundation for the following discussion.In addition,because the not-establishment company resolutions is a new type taken effect in the Judicial Interpretation of the Company Law of the People's Republic of China(?),this means that certain situations occurred before the Judicial Interpretation of the Company Law of the People's Republic of China(iv)was often considered to be revocable or invalid company resolution,but after the Judicial Interpretation of the Company Law of the People's Republic of China(iv)effected should be considered as not-establishment resolutions.This change will be unfavorable effects for the court in a short period that the judge in the trial usually receive the influence of the view and this led to the court decision was differences after the Judicial Interpretation of the Company Law of the People's Republic of China(iv)took effect.And these differences could be enormous.Based on this,this paper will also do empirical research about not-establishment resolutions.Starting from the cases to find out the disorder of judicial practice and the recognition of the not-establishment resolutions after the Judicial Interpretation of the Company Law of the People's Republic of China(iv)took effect,including the identification of specific flaw reasons and the effectiveness,and the procedural obstacles such as the cause of action,the period of reprimand and the effectiveness of judgment.And further,from the perspective of the problem,try to solve the problems of the not-establishment company resolutions that is not applicable to explain difficulties.The not-establishment resolutions system plays a role to a great extent and becomes a good means of maintenance the company stable and efficient operation.