| Since the Supreme People’s Court issued the "Supreme People’s Court’s Provisions on Certain Issues Concerning the Application of the ‘Company Law of the People’s Republic of China(4)",the resolution that the non-existent resolution of corporate decisions has been formally established.Prior to the introduction of this regulation,the lawsuits concerning the resolutions of the company in China were only the two lawsuits,the revocation of corporate decisions and the invalidation of corporate decisions.This provision revise the company’s resolutions,making the company’s lawsuits more systematic and complete at the level of rules;making the non-existent resolution of corporate decisions independent of the invalidation of corporate decisions and the revocation of corporate decisions.It is possible to use independent new procedures to try the case instead of compelling the case to be tried with an invalid action or a revocable proceedings.Judging from the application of the law of the company’s resolutions in various countries of the world,Japan and South Korea are the countries that have made separate decisions on the company’s resolutions.The establishment of non-existent resolution of corporate decisions in China is a manifestation of the improvement of the rules,but there are still deficiencies that need to improve.By taking lessons from the legal provisions of Japan and South Korea,the author believes that China can improve the system from the aspects of the prosecution of the subject,the conditions for the prosecution,the jurisdiction of the court,the guarantee of litigation,legal effects,and coordination procedures.This article is divided into four parts:The first part is an overview of the non-existent resolution of corporate decisions.It’s a judicial remedy based on litigation.The meaning of non-existent resolution of corporate decisions can be studied in depth.Judging from the nature,the litigation is a form of complaint;from the perspective of classification,the litigation belongs to the shareholders directly.Article 22 of the “Company Law” in China stipulates the types of lawsuits that the two companies have resolved—the lawsuit of the revocable of corporate decisions and the invalidation of corporate decisions.Non-existent resolution of corporate decisions differs from the two different company resolutions mentioned above.The difference between the non-existent resolution of corporate decisions and the former is that the company’s resolution is of a different type.The difference between the non-existent resolution of corporate decisions and the latter is that the company’s resolution is different.The lawsuits that distinguish the three company’s resolutions are actually seeking legal grounds for the independent status of the non-existent resolution of corporate decisions,and delimiting the lawsuit relief channels that different companies must adopt.The second part is the extraterritorial inspection of the non-existent resolution of corporate decisions.Judging from the Japanese and South Korean laws and regulations regarding the unsuccessful resolution of the company’s resolution,Japan’s laws and regulations did not prescribe that the non-existent resolution of corporate decisions as an independent company’s resolution,but instead of adding some supplements after the amendment to the Commercial Code.Following the footsteps of Japan,South Korea also passed legislation to determine the independent legal status of non-existent resolution of corporate decisions.Converging with Japan and South Korea,China’s lawsuits were resolved only after the revocation of corporate decisions and the invalidation of corporate decisions,and then the judicial resolutions supplemented the non-existent resolution of corporate decisions.The difference between the two countries is that China has no provisions on the lawsuit,the validity of judgments,and other issues related to the lawsuit.It only provides an understatement of the lawsuit participants and the conditions for prosecution.As an independent litigation,the lack of corresponding procedural regulations will inevitably cause controversy,and the applicable provisions of the Civil Procedure Law for general litigation may not necessarily be established because of the special nature of corporate litigation.Therefore,it is an important way for China to improve the lawsuit by referring to the relevant provisions of Japan and South Korea on non-existent resolution of corporate decisions.What is common to the lawsuits that Japan and South Korea’s non-existent resolution of corporate decisions is that they both provide the courts for the jurisdiction of the lawsuit and the lawsuit guarantee system.China can increase similar regulations.The third part is the extraterritorial investigation of the non-existent resolution of corporate decisions.Since the establishment of the non-existent resolution of corporate decisions in September 2017,the application of such lawsuits has already begun to show its defects.For example,different cases have shown different results in judging the effectiveness of corporate resolutions with forged signatures,and non-existent resolution of corporate decisions in Japan and South Korea are the resolutions of the companies that have the highest frequency of use.The same situation is most likely to occur in China that is regulated by Japan and South Korea.In face of abuse,China has not formulated any system to prevent it.Therefore,we can see from the case of practice in our country that there is still room for perfection in the non-existent resolution of corporate decisions.The concrete manifestations are: the subject of the indictment is uncertain,the conditions for the prosecution are ambiguous,the rules of jurisdiction are lost,the abuse of the regulation mechanism is still pending,and the legal validity and the front program is missing.The fourth part is the improvement of the non-existent resolution of corporate decisions.The author believes that the improvement of the unsuccessful resolution of the company’s resolution can proceed from the following aspects.In addition to the established shareholders,directors,and supervisors,the third party who enjoys the interests of the lawsuit has the right to appeal,which can be interpreted within the scope of the word "etc." The provisions of the conditions should not be free to arbitrarily explain;in the provisions of the jurisdiction of the court,can be the non-existent resolution of corporate decisions in the scope of exclusive jurisdiction;in the prevention of abuse of the rules of the rules,it is advisable to take a suit security system;in the coordination process,the pre-procedure should be set as the diversion of the lawsuit;on the provisions of the validity of judgments,the non-existent resolution of corporate decisions should be judged self-resolving and formative.Under normal circumstances,it has the retroactivity,and the establishment of rules does not have retrospective force under special circumstances.At the same time,the judgment has the effect of being effective against the world and can bind the third person to the outside world. |
