Research On The Effect Of Association Resolution

Since modern times, with the world's economy expanding and resources acceleratedly flowing in the world, social division of labor has been strengthened in its partition and specialization, and moreover with the recognition of association freedom, a great variety of social organizations are playing more and more important roles in economic, political and cultural fields. As a subject of private law, social organization is made up of members who join voluntarily with diverse interests.In order to balance the interests among the members in group or between the individual and the group, members of social organization agree on matters by adopting resolutions to form unified will of the group and keeping the group functioning. However, the existed law follows with the doctrine of will autonomy which takes personal liberty as the core, not caring about the resolution which has strong group color and focuses more attention on procedure. And that makes few scholars engaged in resolution. For the purpose of promoting the depth development in legal act theory and enriching the research content on community law, this thesis, according to traditional research approaches of legal act theory, describes the connotation and extension of resolution and determines the resolution's nature first, then dissects the elements of resolution establishment and its effectiveness, discusses the defective resolutions and their remedy measures, and puts forward legislative suggestions about establishing the association resolution regulations for Chinese Civil Law Code in the future.This thesis consists of three parts, the introduction, the body text and the conclusion.The introduction part discusses the current research situation at home and abroad, and introduces the writing purpose and its significance both in theory and practice. While pointing out that both the legislation and research at home and abroad paid little attention to the resolution and also the unified rules of the general resolution are lacking, the paper sets clear objectives about building the general rules which can be applied to all kinds of resolutions. Then it analyzes that constructing rules can not only enrich the legal act theory, promote the research on community law theoretically, but also can respond to social needs and call for the enactment of Chinese Civil Law Code practically.The body text of the thesis is divided into three parts:The first part gives the nature of resolution, which is based on clarifying the concept of resolution. It starts with the structure of the resolution, and then analyzes the characteristics of the resolution, which help to deduce its connotation. From the evaluation of three viewpoints about the resolution's nature in academics, the thesis draws a conclusion that the resolution is a kind of common legal act. Under this premise, the thesis points out that the resolution cannot follow the rules of traditional legal act, by introducing the group characteristics of the resolution and explaining the importance of will generating in the resolution. Next, the thesis comes to a conclusion that the resolution is distinguished from the constitution of group, by dissecting the differences between the resolution and the constitution in standard content, forming time and legal effect.Based on the conclusion that the resolution is a kind of common legal act, the second part first follows the analyzing way which be applied to study the effect of legal acts, and clearly defines the differences and connections between resolution establishment and its effectiveness, then discussed the aforementioned two legal concepts respectively.For a resolution to be established, three conditions are required: subject, object and procedure. The resolution would have legal binding force once it is formed, and it should allow the members who didn't attend the meeting with reasonable causes to vote before the resolution is established. In general case, when a resolution meets three effective requirements, it comes into effect and its effectiveness is legally binding on both the group itself and a third person. One exception is that if a resolution should have special effective conditions for being valid, it won't take effect until those conditions are met.The third part mainly explores defective resolutions with the purpose of expanding and improving the effect system of resolution which the second part of this article has argued already. Defective resolutions include the nonexistent resolution, invalid resolution, revocable resolution and effectiveness-pending resolution. When the establishment of resolution has defects, it means there is a nonexistent resolution with little effect, which is different from invalid resolution and revocable resolution. When a resolution violates the mandatory provisions of laws, administrative regulations or social conventions, the resolution shall be null and void. When a resolution violates statutory procedures or the constitution of group, the organization policy-making body or the members have the right to cancel the resolution and should request the people's court or an arbitration institution to revoke it. When the effect of a resolution is uncertain, for confirming the resolution's effect, the organization policy-making body or the members may urge the competent authority or the agent to ratify the effect.In the context of preparing to enact the civil law code, the conclusion part offers proposals based on the summaries of the thesis. It emphasizes the provisions of resolution should be stipulated independently and placed in the chapter of legal act, which can put an end to the excessive fragmentations of the resolution rules. After summing up the whole text, this thesis attempts to design relevant rules of the effect of resolution.