A Study On The Non Establishment Of The Resolution Of The Board Of Shareholders Of A Limited Liability Company

In September 2017,China issued the Supreme People’s court provisions 4 on Several Issues concerning the application of the company law of the People’s Republic of China(hereinafter referred to as "judicial interpretation(4)"),in which the factual judgment of defective resolution is added in Article 5,that is,the validity of the resolution can be judged only when it meets the requirements of establishment,and the system of non establishment of resolution is introduced.In order to make up for the deficiencies in logic and practice under the original "dichotomy" system.With the implementation of the system,the number of cases in which the court deals with the disputes over the non establishment of a company resolution is increasing day by day,which highlights its value.However,the provisions of judicial interpretation(4)on the non establishment of a resolution are not based on the elements of the establishment of a resolution,but on the way of listing.In addition,other circumstances are added as the bottom clauses.The reasons for the defects are not clear,and the provisions are also more abstract.The process of making a company resolution is complex,and the types of defects are various.There are many differences on the determination of the resolution’s non establishment in judicial practice,and the company law and judicial interpretation have not provided for the relief methods of the resolution’s non establishment system.In order to solve the above problems,this paper takes the "resolution of shareholders’ meeting" of limited liability company as the research object,and selects 129 cases of non establishment of resolution of shareholders’ meeting which are published on the Internet of China’s judicial documents from 2017 to the end of 2020 as samples to analyze the causes of defects in the dispute of non establishment of resolution.This paper is divided into four parts:The first part introduces the background of our country from the era of dichotomy to the era of trichotomy,and then expounds the research direction of our scholars before and after the promulgation of judicial interpretation(4),as well as the research status of foreign countries,and introduces the research methods used in this paper,pointing out the innovation and shortcomings of this paper.The second part is from the nature of the company resolution,to explore the nature of the company resolution is the starting point to understand the type of defective resolution.Therefore,this part first introduces the different views on the nature of the resolution,and then from the legal provisions of the civil code,demonstrates that the act of the company resolution is different from the unilateral,multilateral and common legal act,and it is a special legal act.At last,it demonstrates the necessity and rationality of introducing the system of non establishment of resolution.The third part is to distinguish the non establishment of the shareholders’ meeting resolution from other defects.This paper holds that the decision of the shareholders’ meeting is a factual judgment,the invalidity and revocability of the resolution belong to the value judgment.The type of defective resolution to which the cause of the defect belongs should be judged first,then the value judgment.Therefore,the conditions for the establishment of the resolution should be clarified first.Through combing the views of relevant scholars,the paper holds that the conditions for the establishment of the resolution are legal subject qualification,the actual meeting and the number of participants meet the requirements,the shareholders vote on the basis of free will,and the resolution is passed in line with the majority of capital.Then,according to relevant provisions,the difference between the resolution not established and the resolution revocable and the resolution invalid is distinguished.The fourth part summarizes the causes of the defects in the sample cases of the resolution of the shareholders’ meeting not established,and studies the causes of the defects from the three stages of the convening,holding and voting of the shareholders’ meeting according to the listed cases of the non establishment system.In order to prevent the phenomenon of different judgments in the same case and provide the basis for the judge to judge the specific cause of defects,this paper makes a theoretical analysis of each type of defects combined with the legal text,and analyzes the disputes in practice.The fifth part of the resolution of the shareholders’ meeting does not establish the way of relief,this article from the non litigation relief,litigation relief and third party relief three aspects.First of all,from the aspect of non litigation relief,according to the case analysis in the fourth part,it puts forward different ways of non litigation relief;Secondly,in the aspect of litigation relief,this paper suggests that the rule of non establishment of resolution should be applied by analogy to the provisions of ordinary limitation of action in civil law;Finally,on the relief of the third party,this paper thinks that the failure of the resolution of the shareholders’ meeting will not affect the legal relationship of the third party in good faith,and puts forward relevant suggestions.