Research On The System That The Resolution Of The Shareholders' Meeting In Our Country Is Not Established

As the highest authority of the company,the board of shareholders decides the major issues of the company's operation and management.The resolution of shareholders' meeting not only determines the internal operation of the company,but also may have an impact on the outside of the company.In recent years,the resolution dispute of shareholders' meeting has gradually become a hot issue in corporate law practice.China's Judicial Interpretation of Company Law(IV)introduces for the first time the provision that the company resolution is not established,which changes the previous "dichotomy" system about the validity defects of the resolution.But from the point of the judicial interpretation of the provisions,the shareholders' committee resolution is not yet established system there are still two problems:one is on the cognizance of the shareholders' committee resolution was not reason,the company law judicial interpretation(four),only lists the four leads to resolution not stand,for the shareholders' committee resolution was not identifying standards and methods,in the legislation is not specified,Attitudes vary in practice as to which situations are included in the "other circumstances that lead to the failure of a resolution" clause.Second,the relevant provisions of the resolution of the board of Shareholders on the non-establishment of litigation are still not perfect,and it is not clear whether the plaintiff in the lawsuit should include other subjects besides the shareholders,directors and supervisors of the company.At the same time,it lacks the guarantee mechanism of litigation and the provisions of external legal consequences of judgment.This paper through the study of the nature of the shareholders' committee resolution,the established condition,the shareholders' committee resolution of the shareholders' committee resolution is not set up the legal consequences and the system value,the shareholders' committee resolution was not suit legislation present situation and the judicial present situation,Japan and Korea of the legislation about the shareholders' committee resolution is not set up a system of rules,offer advice to the above questions,to improve the system of the shareholders' committee resolution is not set up in China,to better guide judicial practice.This paper is divided into four chapters.The first chapter is mainly about the theoretical basis of the failure of shareholders' meeting resolution,discusses the nature of shareholders' meeting resolution,recognizes it as a special legal act,and analyzes the elements of the establishment of shareholders' meeting resolution based on the nature of its legal act.Then it defines the connotation of untenable resolution of shareholders' meeting and compares it with invalid resolution of shareholders'meeting and revocable resolution.Then the study of the shareholders' committee resolution is not set up the legal consequences,to distinguish the two aspects of external and internal legal consequences legal consequences,and finally based on the value of the system of the shareholders' committee resolution was analyzed,concluded that this system has the order value,benefit value and the safety value,for the second chapter analysis made on the issue of system theory.The second chapter is the realistic investigation of the non-establishment system of shareholders' meeting resolution in China,including the investigation of the legislative status quo and the judicial status quo.Firstly,it studies the current provisions of judicial Interpretation of Company Law(IV),analyzes the provisions on the causes of non-establishment of shareholders' meeting resolutions and the provisions on litigation of non-establishment of shareholders' meeting resolutions,and then analyzes the judicial application of the current system according to the sorted cases.Then based on the provisions of the judicial interpretation and the referee status quo,put forward our country's at present the shareholders' committee resolution was not stipulated and some problems existing in the procedure,which mainly includes the "other circumstances lead to the resolution was not" standards is unknown,the shareholders' committee resolution was not the plaintiff that suit is not clear,lack of the shareholders' committee resolution was not sentence external guarantee mechanism and legal consequences of litigation rules and the relief way of the shareholders' committee resolution was not a single.The third chapter analyzes that the resolution of shareholders' meeting in Japan and Korea does not establish legal system.By Japan,South Korea,two countries legislation and the practice about the cognizance of the shareholders' committee resolution was not reason,litigation plaintiff scope,the guarantee system of litigation and judgment of the third person's legal regulations,etc are studied emphatically,and for Japan and Korea,summarized the similarities of the two countries regulations,comparing the difference of sum up out our country can draw lessons from the experience.Chapter four proposes Suggestions for improvement one by one according to the problems mentioned above.Specifically,one is to construct the shareholders'committee resolution is not established standards,and through the cognizance of"two-step" method for actual operation-that is,the first step to determine whether the shareholders' committee resolution with the necessary element of establishment of the second step is to although established its essential elements,but necessary element itself has serious flaws in specific analysis program;The second is to interpret the"etc." in the provisions of the plaintiff as "other people who have a direct interest in the content of the resolution of the board of Shareholders",and to make reasonable restrictions on other subjects other than shareholders,directors and supervisors when granting plaintiff qualifications according to the circumstances of the case;The third is to increase the resolution of the board of shareholders not to establish a litigation security mechanism to prevent abuse of litigation;Fourth,it stipulates that the consequences of judgment that the resolution of shareholders' meeting is not established will not affect the bona fide third party who has formed a right and obligation relationship with the company before the determination of the judgment;The fifth is to introduce the non-litigation remedy way that the resolution of shareholders' meeting is not established to cure the defects of the resolution.