A Study On The Validity Of Defective Resolution Of Shareholders' General Meeting

As a form of organization and meeting of a joint stock limited company,the exercise of its power is concentrated on the making and execution of the resolution of the shareholders' general meeting,through which the shareholders make the resolution of the shareholders' general meeting.In order to ensure that the resolution of the general meeting of shareholders represents the will of all shareholders,it should not only satisfy the regulation of the content of the law,but also meet the strict procedural requirements,otherwise the resolution would be a flawed resolution.Shareholders may,according to the type of defect of the resolution,bring to the court an action to confirm that the resolution is not valid,to confirm the resolution to be invalid or to revoke the resolution.The first part of this paper discusses the theoretical problems of the resolution defects of the shareholders' general meeting,including the legal nature of the resolution of the shareholders' general meeting.There are two major theories about the nature of the resolution of the shareholders' general meeting: the theory of legal act and the theory of will formation,and the theory of legal act defines the nature of the resolution as a multi-party legal act,a contractual act,According to the theory of special legal act,this article holds that the nature of the resolution of the shareholders' general meeting should be special legal act,the unilateral legal act and the legal act of both sides.On the classification of the defective effect of the resolution of the shareholders' general meeting,the resolution is invalid.A "dichotomy" in which a resolution can be revoked;a resolution cannot be made.A "three-point law" in which a resolution is null and void and a resolution may be revoked;and a resolution that does not exist and does not form a valid resolution may be revoked,This paper holds that it is more appropriate to define the nature of the resolution of the shareholders' general meeting as a special legal act,and that the effect of the defective resolution of the shareholders' general meeting should not be established,and the resolution is invalid.The "three-way" division method in which the resolution can be revoked.The second part of this paper discusses the legislative path of the resolution validity of defective shareholders' general meeting in our country.Because there are many disputes about the classification theory of defective shareholders' general meeting resolution,and in judicial practice,Legal workers also believe that the dichotomy,which applies only to the CompanyLaw,cannot solve the problems encountered in practice by dividing the validity of resolutions of defective shareholders' general meetings.Therefore,in April 2016,The Supreme people's Court has issued a draft for soliciting opinions to divide the validity of a defective company resolution in more detail.On 2017,the Supreme people's Court issued the Judicial interpretation of Company Law IV,which divides the validity of a defective company resolution into two categories."Resolution is not established","resolution can be revoked" and "resolution invalid" three situations.The third part of this paper discusses the defects of the convening procedure of the shareholders' general meeting and its validity.The convening procedure of the shareholders' general meeting includes the ownership of the convening power.The notice of shareholders and the number of attendance of shareholders.The law of our country clearly stipulates the convenor of the periodic general meeting of shareholders and the convenor of the interim general meeting of shareholders and the order of the exercise of the convening power,and the validity of the general meeting of shareholders,which is called in violation of the law,The scope of the discussion of the resolution of the shareholders' general meeting shall be limited to the scope of the notice,and the matter without notice shall not be discussed at the general meeting of the shareholders,otherwise the resolution of the matter shall be null and void.All voting shareholders shall be notified in advance of the convening of a general meeting of shareholders Shareholders who have not received notice may apply to the court for rescission of the resolution of the shareholders' general meeting.The court should judge whether to revoke the resolution on the basis of the influence of the shareholder's voting rights on the outcome of the resolution.As for the number of attendance at the shareholders' general meeting,Although there is no provision in the current law of our country,the Securities Law,which is about to be amended,has brought it into the scope of the new legislation,and the resolution made by the shareholders' general meeting which has not reached the number of attendance prescribed by the law is not valid.The 4th part of this paper discusses the defects of the voting procedure of the shareholders' general meeting and its validity determination.In the voting procedure,the first thing to be paid attention to is the proxy exercise of the voting right,and the process of the proxy exercise of the voting right is apt to cause defects.Therefore,we need to clarify the validity of each voting right.If the total voting rights of the resolution of the shareholders' general meeting minus the defective number of voting rights still meet the requirements of thelaw and the articles of association for the capital majority decision of the resolution,Then the resolution is valid.Secondly,we need to pay attention to the defects of the method of exercising voting rights.There are two ways of exercising voting rights: on-site voting and communication voting,in which the on-site voting method needs to abide by "one vote".The rules of "one decision";the method of voting by means of communication may only be adopted by the listed company,and the annual general meeting of shareholders and the shareholders' general meeting convened at the proposal of the shareholders or supervisory board shall not be adopted,A defect in the mode of voting in which no communication vote shall be used,The defects of the voting procedure need to be analyzed for the impact of the specific vote on the outcome of the resolution of the shareholders' general meeting,if the shareholder's vote is not sufficient to affect the voting result,The validity of the resolution shall not be affected and the resolution may be revoked if the shareholder's vote is sufficient to affect the result of the vote.The 5th part of this paper discusses the defects and their effects of the resolution of the shareholders' general meeting.In violation of the mandatory provisions of laws and regulations and of the articles of association of the company,the abuse of capital majorities violates the principle of prohibiting abuse of rights and the principle of good faith assumed by the controlling shareholder towards the non-controlling shareholder,which is a violation of the principle of law,The resolution is invalid.Violation of the law,administrative regulations refers to violation of the mandatory provisions,the resolution is invalid.Articles of association is the embodiment of corporate autonomy,violation of the articles of association resolutions are revocable resolutions.