Research On The Relief System Of The Company's Defect Resolution

The defective resolution of a company refers to the resolution made by the shareholders' meeting and the board of directors,which is defective in content and procedure.Article 85 of the Civil Code stipulates the cancellation rules for the remedy of defective resolutions of a company,that is,if the convening procedure and voting method of a meeting violate laws,administrative regulations and the articles of association of a legal person,or the contents of a resolution violate the articles of association of a legal person,the investor may request the people's court to cancel the resolution.Article 22 of the company law stipulates the rules of invalidity,revocation and litigation guarantee for the remedy of defective resolutions of the company.The resolutions of the company that violate laws and administrative regulations are invalid.When a shareholder files a suit of invalidation or revocation,the company may apply to the court for the shareholder to provide corresponding guarantee.Articles 1 to 6 of judicial interpretation(4)of company law supplement the plaintiff qualification and non establishment system in the remedy system of defective resolution of company.According to the legislative and judicial practice,there are still the following problems in the remedy of company defective resolution: first,the reason for invalidation of company resolution is not clear;second,the boundary between revocability and non establishment of resolution is fuzzy;third,the provisions of plaintiff in company defective resolution litigation are incomplete;Fourth,the rules of litigation guarantee for company defective resolution are too simple;fifth,there is lack of non litigation remedy.There are three main reasons for the above problems:one is that the practitioners use two standards to interpret the reasons for invalid resolutions;the other is that there are procedural defects in the reasons for revocable resolutions and non establishment resolutions;the third is that there are omissions in legal and judicial interpretations.In view of the above problems,we should provide relief from the following aspects:First of all,the reasons for the invalidity of defective resolutions are detailed.For example,the company's resolutions that violate the independent personality of legal person and the limited liability of shareholders are invalid;the company's resolutions that violate the democratic decision-making procedures are invalid;the resolutions that excessively distribute profits or conduct major and improper related party transactions are invalid;the resolutions that shareholders vote by fraud or coercion and damage the interests of the company or other shareholders are invalid;the contents of the resolutions are consistent with the existing laws and administrative regulations The contents of the resolution are invalid if they violate public order and good customs.Secondly,we should make a clear distinction between revocable resolution and non establishment resolution.Revocable decisions focus on value judgment,pay more attention to transaction efficiency and encourage transactions.The resolution that is not established focuses more on the judgment of facts and procedural justice.We can also distinguish the two by establishing the establishment requirements of company resolution.The establishment requirements of a company's resolution include: 1.There is a calling procedure;2.There is actually a meeting;3.The meeting voted on the content;4.Shareholders with a quorum or voting right attend the meeting;5.The voting result conforms to the prescribed proportion.Then,the scope of the plaintiff of the revocable action of the company's defective resolution is extended to the directors and supervisors,and it is clearly stipulated that the nominal shareholders,the shareholders with defective capital contribution,the removed shareholders or the directors,supervisors and the successor shareholders have the right to file the action of the company's defective resolution,while the shareholders who vote in favor of the resolution or do not express their objection on the spot and the transferring shareholders have no right to file the action of the company's defective resolution The lawsuit of defective resolution.Moreover,we should improve the guarantee system of the company's defective resolution litigation,increase the conditions of guarantee,and clarify the way and object of guarantee.Among them,the guarantee condition is that when the company applies for the court to require the shareholders to provide guarantee,the company should prove that the shareholders,directors and supervisors have an improper purpose to file a lawsuit.The way of guarantee can be margin,bank deposit,vehicle,house,bank guarantee and guarantee company.The object of entity guarantee should be the normal expenses arising from the litigation of company's defective resolution.Finally,it constructs the non litigation relief way of the company's defective resolution,and increases the system of healing and withdrawing the company's defective resolution.That is to say,the defective resolution of the company can be cured by the unanimous approval of all shareholders,and can be withdrawn by the resolution of the board of directors before the defective resolution of the company is implemented.