中国股东会决议不成立制度研究 -兼论2017年《公司法司法解释(四)》第五条-

Abstract

Along with the issuing and application of “Judicial Explanation of Company Law (IV)”, the dichotomy used in the aspect of effectiveness of company resolutions related to company law is transformed into trichotomy, namely, the disposing method for defects existing in resolutions made by the shareholders' meeting is changed into the three categories as cancellation of the resolutions, invalidity of resolutions and ineffectiveness of the resolutions after dividing the original resolutions according to the degree of resolutions’ defects. In terms of the “dichotomy”, there is logical defect: the cancellation or invalidity of resolutions is determined on the premise of effectiveness of the resolutions. For example, all the resolutions made in the shareholders' meeting convened by the personnel without convening power or in the meetings which are never held are actually the ineffective resolutions, in this regard, if they are categorized into the cancellation or invalidity of resolutions, the errors are obvious and the conduct is improper. Therefore, “Judicial Explanation of Company Law (IV)” is formulated and carried out with the aim to stabilize the market orders. Although it makes up the loopholes existing in “dichotomy” theory and provides the legal basis for judicial practice, there are still disputes on part of its content. Resolution non-establishment of shareholders' meeting means that the resolution of shareholders' meeting does not meet the conditions for establishment. If there are serious flaws in the procedure, the resolution may not be established. The resolution non-establishment system preserves the company's operation procedure and the company's management orders. Based on the research and study of the cases in which the resolution of shareholders' meeting is not established in China's judicial practice in recent ten years, this paper analyzes the five reasons for the non-establishment of the resolution of shareholders' meeting. Although China has established the "three-part law" on the flaw effect of resolutions of the shareholders board, the plaintiff scope, the free discretion of other circumstances, the limitation, forged signature and other aspects still face disputes due to unclear provisions.First, it is necessary to expand the scope of the plaintiff who fails to establish the resolution of the shareholders' meeting. According to the specific situation, the company's executives and employees, the company's creditors and nominal shareholders should be respectively granted the right of appeal against the resolution of the shareholders' meeting. Secondly, the influence of forged signature on the resolution validity of the shareholders' meeting should be determined. Secondly, the influence of forged signature on the resolution validity of the shareholders' meeting should be determined. In the first place, if there is no actual meeting and the meeting fails to reach the adoption ratio, the resolution of the shareholders' meeting shall be determined as invalid. In the second place, if the resolution adoption ratio is reached after the removal of forged signature, it is a general defect and can be listed as a revocable type..Thirdly, the boundaries between the non-establishment of the resolution and the revocability of the resolution are clearly divided. The three aspects are compared respectively from the three aspects of different defects degrees, different litigation subjects and different prescription periods. The non-establishment of the resolution is a serious procedural defect. Fourth, to determine the impact of the resolution on external legal relations, it is necessary to distinguish the malicious counterparts or the goodwill counterparts. If the malicious counterparts, they should return all the vested interests and investigate the corresponding legal responsibility. In the case of a kind counterpart, there is no need to return the benefits obtained related to the resolution.