Analysis Of The External Legal Effect Of The Unestablished Corporate Resolution

Since the Supreme People’s Court promulgated Provisions of the Supreme People’s Court on Several Issues concerning the Application of the Company Law of the People’s Republic of China(IV)(hereinafter referred to as "Judicial Interpretation of the Company Law(IV)")in September 2017,the effectiveness of company resolutions system in terms of the old "two-point method" has been changed into the current "three-point method" effectiveness evaluation system,meanwhile add the defected type of the unestablished corporate resolution.However,the interpretation only stipulates the judgment of the invalidity and revocability of the two defective resolutions on the effectiveness of external legal relations.It does not include the unestablished corporate resolution,and has not yet provide any regulation for this till now.It is not confirm whether it base on legislative omission or other considerations.According to this,this article will use the method of legal interpretation and analysis of real case to demonstrate,by theoretical and practical view,which conclude that the external legal effect of the corporate resolution is not valid,and it also can be applied by the Article 6 of "Judicial Interpretation of the Company Law(IV)".The ideas and framework of this article are as follows:In the introductory part,it synthesizes different views of the current academic circles on the legal attributes of corporate resolutions,clarifies the legal nature of corporate resolutions,and lays a theoretical foundation for the following analysis.The first chapter analyzes,by theoretical and practical view,the necessary of the company’s resolution not be established but as an independent defective type of resolution.The first section discusses its theoretical value,which can make up for the shortcomings of the " two-point method " in logic system;The second section discusses its practical significance,that is,it can make up for the shortcomings of the corporate resolutions that are invalid and revocable,help guide the unified judicial practice judgment,and help protect the legal rights of minority shareholders.The second chapter introduces the external legal condition and existing issues of the unestablished corporate resolution.The first section sorts out the legal norms concerning the external legal validity of the unestablished corporate resolution and finds the current problems in legislation;The second section uses practical cases to explain that due to the imperfection of the current legal norms,there have been inconsistent laws in judicial practice.The third chapter,according to the different matters involved in the content of corporate resolutions,discusses the legal consequences of unestablished corporate resolutions by type,and see which types of unestablished corporate resolutions will affect the effectiveness of the company’s external legal actions.The fourth chapter,in conjunction with the provisions of the “Minutes of the National Courts’ Civil and Commercial Trial Work Conference”,further summarizes and analyzes the core factors that determine the external legal effectiveness of unestablished corporate resolution in our country,that is,the principle of distinction between internal and external,and at the same time,in order to maintain transaction safety and stability and balance the interests of all parties,it is determined based on whether the relative is in good faith;Based on the stability characteristics of the law,it is difficult to directly incorporate the relevant provisions into the legal provisions,so the author tries to find a determination measure to resolve the unestablished corporate resolution’s external legal effects under the existing legal framework system.In additional,the application of the period when the resolution is not established will also affect the external legal validity of the unestablished corporate resolution,so the author attempts to propose a certain period of prosecution or other methods as a solution..In addition,although the voting mechanism of the resolutions of the shareholders’ general meeting and the board of directors are different,but the basic principles of the these two are the same.Therefore,for the convenience of writing,this article refers to both the resolutions of the shareholders’ meeting and the board of directors as company resolutions.At the same time,considering the shareholder(large)meeting and the board of directors are more comprehensive and representative,this article will not discuss other special situations at this time.