| Article 22th of The Company Law provides the system of invalidity and cancellation of resolution only according to the definition standard of illegal content and procedure of company resolution.For the most autonomous company resolution,The Company Law stipulates the remedy system of the defective resolution only by one frame structure article,which obviously underestimates the complexity of the company resolution.Only if the convening procedures and voting methods in accordance with the provisions of the laws and regulations and the articles of association of the company,the resolution shall be established.Therefore,although The Company Law only provides for the invalidity and cancellation of the resolution,from the systematic interpretation,it can be concluded that the provisions of Article 22th in The Company Law contains the implied provisions on the premise of the establishment of the resolution.Thus,it confirmed the rationality of the establishment of the resolution.In March 15th 2017,the general rules of Civil Law were formally adopted.Item 2 of Article 134,states:"If a resolution is made by a legal person or an unincorporated organization in accordance with the rules of procedure and voting procedures prescribed by law or articles of association,the resolution shall be established".This provision provides the basis of the upper legal for the establishment of the action of the company’s non-establishment of the resolution.In The Judicial Interpretation Of Company Law(4),published in August 29th 2017,the issue of company resolution accounts for a quarter pages,which affirms the important position of the validity dispute of company resolution in the dispute of company type,and formally establishes the system of non-establishment system of company resolution,and key provisions are made on issues related to the non-establishment of the resolution.There are still many problems in the system of the suit of the non-Establishment resolution of shareholders’ meeting.First,Article 1 of The Judicial Interpretation Of Company Law(4)"If the shareholders,directors and supervisors,etc.of a company request to confirm the shareholders’ meeting or shareholders’ general meeting,and resolution of the board of directors is invalid or not established,the people’s court shall accept it according to law." The word "etc" in this article is an open provision,in the meantime,this provision does not deal with the right of the shareholders of non-voting preferred shares in the case of an untenable resolution of a shareholders’ meeting,and it is also impossible to derive the right of the hidden shareholders against the untenable resolution of the shareholders’ meeting from this provision,nor to assert that the future anonymous shareholders and non-voting preferred shareholders will not bring a suit against the shareholders’ meeting resolution which concerns their own interests.Second,Article 4 of The Judicial Interpretation Of Company Law(4)stipulates four specific company resolutions,Article 5 stipulates the miscellaneous provision of "other circumstances leading to the resolution being untenable".The provision stipulates other violations of the company’s resolution procedures,that is,the miscellaneous provision covers the situation in which the resolution is not established,but it does not cover the limits of circumstances in which the company’s resolutions can be revoked,due to the procedural violations.Third,Article 6 of The Judicial Interpretation Of Company Law(4)stipulates that "The civil legal relationship between the company and the well-meaning counterpart shall not be affected by the judgment of the court as confirming the invalidity or the cancellation of the resolution of the shareholders’meeting." The provisions of the law do not stipulate whether the civil legal relationship formed by the resolution of the shareholders’ meeting,which has been decided by the people’s court as not established,and the baleful counterpart shall be affected,and whether the company’s civil legal relationship with the well-meaning counterpart is affected by the resolution isn’t known from the law.In view of the above problems,we can perfect the litigation system of shareholders’ meeting resolution in the following aspects.Firstly,the word "etc" in Article 1 of The Judicial Interpretation Of Company Law(4)is an open provision,the word"etc" here shall include other stakeholders,such as senior managers,employees,creditors,etc.However,the understanding of the word "etc" in the article shall be limited,because if too broad,almost all litigation can be included.And if too conservative,some cases will be closed.Meanwhile,it is necessary to make a theoretical study on the right of filing a lawsuit against preferred stock shareholders and dormant shareholders on the non-Establishment resolution of shareholdersmeeting.Secondly,there are many doubts in theory and practice about on the non-Establishment resolution of shareholders’ meeting.The impact of shareholders’resolution defects caused by defects in the convening procedure and voting method cannot be simply defined.Specific procedural defect conditions,such as shareholders’meeting convened by the non-muster,lack of notice procedure for convening participation of non-voting shareholders in voting,defects in the expression of intention of individual shareholders,miscalculation of voting rights,etc.,shall be analyzed specifically.This paper defines the judgment of shareholders’ meeting from the point of view of procedure,and tries to construct the rule of decision which is untenable in theory and practice.Finally,from the point of view of stabilizing the order of commercial transactions and protecting the interests of the well-meaning counterpart,the Article 6 of The Judicial Interpretation Of Company Law(4)shall be cited to refer to the legal principle concerning the effect of invalidity and revocation of the resolution of the shareholders’ meeting on the external validity,the company’s civil legal relationship formed by the well-meaning counterpart is not affected,and the company’s civil legal relationship formed with the baleful counterpart shall be affected.On the background of the introduction of The Judicial Interpretation Of Company Law(4),taking the action of the shareholders’ meeting resolution as the object of study,including the study of the action of the shareholders’ general meeting on the non-establishment of the resolution of the shareholders’ general meeting,for the convenience of expression,the statement that the non-Establishment resolution of shareholders’ meeting also includes the non-Establishment resolution of shareholders’general meeting. |
