Empirical Research On Judicial Judgment Of Defective Resolutions Of Shareholders’ Meeting

Resolution of shareholders’ meeting is a way to form the meaning of the legal person, and it must comply with the legal requirements on content and procedures. In the formation of resolution, either the content or the procedure is illegal, for example the calling process or voting process, the resolution is detective. The defect may harm not only the interests of shareholders, but also the legal order. Therefore remedy must be given to shareholders or other interested person.According to the article 22nd of the present Company Law of China,the legislative mode adopted is dichotomy, which leads to two kinds of remedies, one is resolution invalid and the other is resolution revocable. Due to the ineffective legal regulations and the imperfect system itself, many disputes beyond the range of dichotomy appeared recently. Therefore many scholars proposed tracheotomy legislative mode to deal with practical challenges. However, the tracheotomy mode is mainly about procedure defects, divided into two parts, but not for content defects, which is more important to the nullity of the resolution. In the view of author, invalid is the most severe negative evaluation of the effectiveness. To keep the stability of business and the modesty of law, the reasons which lead to nullity must be specified by legislation. Based on the status quo and issues of judicial cases, this thesis will discuss the nullity grounds and regulations from content and procedure, to clear the border of defects for resolution invalid and resolution revocable, and to complement the effect criteria and validity system of defective resolutions.This thesis consists of three parts:introduction, text and conclusion. The text is divided into four chapters:The first chapter is about the empirical analysis of the cases related to the disputes of shareholders’ resolutions. In this chapter,123 cases in particular 72 cases of resolution invalid are analyzed through 6 tables especially on the issues of "Number of Shareholders", "Content-Type" and "Defect-Type". The author finds that, firstly, the fewer shareholders, the more serious issues in governance of corporation. Secondly, most of the disputes are related to shares, which the invalid rate is also the highest. Thirdly, forged signature and unnoticed lead to a large number of resolutions invalid, meanwhile content defects are not the most significant invalid reason.The second chapter is about the content defects and nullity. This chapter begins by different understandings of the legal regulation by different courts through specific cases. In the view of the author, that "content violates laws, administrative regulations" should be understood as a law prohibiting certain items regulated by resolutions. In other words, certain items are already regulated by prohibitory provisions or mandatory provisions. Despite that, when there is no such provision, we should specify the border of right first, to limit the range of entitlement of shareholders’meeting to the provisions of law and by-laws. If the content is beyond the range, the resolution is principally invalid with exceptions which should be strictly limited.The third chapter is about the serious procedural defects which lead to resolution non-existed. This chapter discusses the inappropriate of recent legislative mode and the theory of legal action in civil law first, proposes the necessity to distinguish serious procedural defects from general procedural defects, the former ones can result in resolution non-existed. Besides, resolution non-existed,resolution invalid and resolution revocable compose the validity system of defective resolutions and resolution non-existed is a separate category. Finally, four common serious procedural defects are listed and analyzed.The fourth chapter is about general procedural defects specialized by forged signature and unnoticed. This chapter begins by different judgments of same defects and the articles of the fourth judicial interpretation of Company Law (draft), proposes that when procedural defects are not serious, resolutions can be revocable. For unnoticed, in case of the necessity and appropriateness of remedy, shareholders can sue to revoke the defective resolution from the date they knew the resolution or should have known. For forged signature, it is also revocable reason. In the condition of defective jointer, we should estimate from content to procedure, from serious procedural defects to general procedural defects.