The Determination And Effectiveness Of The Resolution Of Defective Shareholders’ Meeting

Article 22 nd of Chinese Company Law is about the invalidity and revocation of the shareholders’ meeting,which is either defective in procedures or content.In fact,the revocable or invalid resolution is based on the existence of the resolution.If there is no resolution or forgery one the article 22 nd cannot be applied.The purpose that shareholders have the right to filing a suit when the resolution is defective is to protect the rights of minority shareholders under the principle that the majority shareholders deciding how to operating a company.However,it will undoubtedly damage the interests of the company if allowed the minority filing a suit to withdraw or invalidate a resolution without restriction.Therefore,on the basis of empirical analysis,it is necessary to recognize the situation where the resolution of shareholders’ meeting did not exist virtually.The situation that minority shareholders abuse the right of filing,the building of the discretion to dismiss is practicable too.The first part is the definition of defective shareholders’ meeting.On the basis of summing up the theory of predecessors,because of the particularity of its group behavior,makes it does not subordinate to any one of the traditional civil acts,and the act of resolution should be defined as a single one.The second part is the determination of defective shareholders’ meeting.The revocable or invalid resolution is based on the existence of the resolution.The discretion to dismiss will avoid the company of unnecessary lawsuit filed by them.Theoretically,the discretion to dismiss is a complementary of how to apply the Article 22 nd of Chinese Company Law by judge.Practically,the thinking of applying discretion to dismiss system has appeared in judicial judgment.In the light of the experience of extraterritorial law,it would be more appropriate to limit the discretion to dismiss system to a small degree of flaw in the decision and not to affect the substance of the decision.The third part is the validity of defective shareholders’ meeting,which is divided into two aspects: the binding force and the retroactivity.The binding force is divided into external and internal effects.The resolution of the shareholders ’ meeting will only be effective when the company’s executing agency has established legal relationship with the third party according to the content of the resolution.Retroactivity refers to the legal effect of the legal relationship established by the shareholders ’meeting resolution being deemed to be non-existent,revocable or invalid.The business behavior pursues the efficiency and the security of trade,as long as the outward expression behavior such as making a contract with the third party does not be forbidden by legislation.The company should be subjected to its expression behavior even through the process of making a decision is defective.