Determination Of The Reasons Why The Resolutions Of The Shareholders’ Meeting Are Not Established

The Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the "Company Law of the People’s Republic of China"(4)(hereinafter referred to as ’Judicial Interpretation Ⅳ of the Company Law’)establishes my country’s system of non-establishment of shareholders’meeting resolutions from the legal interpretation level.This is a new creation based on our country’s judicial practice based on the views of academia and extraterritorial experience.Although the system has been established,there are only a few provisions in the judicial interpretation regarding the failure of resolutions,and academic circles still have differences on the basic theories of shareholder meeting resolutions.Therefore,many problems arise in cases where the resolution of the shareholders meeting is not established in the judicial practice of our country,such as different ideas for determining the same reason for the defective resolution of the shareholders meeting,and the application of some legal interpretation clauses is confusing.This article starts from the actual case of the determination of the reason for the unfounded resolution of the shareholders meeting.By collecting and analyzing classified data,this article reveals the problems existing in judicial operation and reflects on the causes of the problems.In addition,it summarizes the scholar’s ideas for determining the reasons for the unfounded resolutions of the shareholders’ meeting,and refers to the foreign experience,and then proposes the ideas and methods for determination,so as to make suggestions for the court to better judge the unfounded reasons for the shareholders’ meeting on the basis of the current judicial interpretations.Aparts from the introduction and conclusion,this article is separated into the following three parts:The first chapter is the current situation and problems of the practice of cases where judging reasons for unfounded resolutions of the shareholders’ meeting in my country.This part firstly analyses the data of case samples.Then,it summarizes and sorts out the cases,analyzing the problems in the judicial determination of the reasons for the failure of the shareholders’ meeting:One is that the court does not have a unified way of thinking to follow when adjudicating this type of case;the other is the prominent phenomenon that colleagues have different judgments and different basis for the same judgment;the third is the issue that the applicability of the bottom-up clauses of Article 5 of the Judicial Interpretation Ⅳ of the Company Law is confusing.Then,the attribution analysis of these three types of issues is carried out,and it is believed that there are four reasons:one is the unclear boundary between shareholder meeting resolutions and revocable relative provisions;the second is that there are omissions in the legislation and judicial interpretations on the reasons for the invalidity of the shareholders’ meeting;third,there are differences in academic views,which makes the court’s reference to academic views inconsistent when reasoning in the judgment;fourth,some courts have wrong understanding of the nature of establishment of the resolutions of the shareholders meeting.The second chapter proposes reasonable ideas for determining the reasons why the resolutions of the shareholders’meeting are not established.The first section analyzes the ideas adopted by the scholars to determine the reasons for the inconsistent shareholders’ meeting,and points out that on the basis of establishing the requirements for the establishment of the resolutions of the shareholders meeting,the idea of reversely introducing the reasons for the failure of the resolutions of the shareholders meeting is preferable.However,this idea still needs to be improved.The second section,by examining the legislative and judicial practices regarding the ideas of the determination of the reasons for the failure of shareholders’ meeting’s resolutions in foreign countries,summarizes the experience worthy of reference in the ideas of the determination,that is,the reasons for failure should be closed.The third section discusses the standard for determining the reasons for the failure of the shareholders’ meeting.That is,if the resolution of the shareholders’meeting is formed without procedural requirements and the requirement of the majority decision is not met,the resolution of the shareholders meeting is not established.The fourth section puts forward reasonable ideas for determining the reasons for the unfounded resolution of the shareholders meeting:first of all,according to the nature of the shareholders’meeting and the aforementioned standards defining the necessary elements for the establishment of the resolution.When the necessary elements are missing,the shareholders’ meeting resolution is not established.And secondly,shareholders meeting resolutions with serious procedural flaws in the necessary elements are not established under the requirements of procedural and the finiteness of reasons for resolution’s failure.The third chapter,based on the rational identification ideas proposed in chapter 2,combined with the empirical research and theoretical analysis,proposes the ’two-level’ method for judging the reasons for the failure of the shareholders’meeting.And makes an analysis of the specific reasons that may lead to the failure of the shareholders’ meeting’s resolution.Next,summarizing the ’two-level’judgment method and the reasons that constitute the disapproval of the shareholders’ meeting,and specifying which item in Article 5 of the Judicial Interpretation IV of the Company Law should be applied when the reason is used as the reason for the judgement of the shareholders’ meeting that is not established.In this regard,clarifying the applicable circumstances of the judicial interpretation,and forming clear,feasible,reasonable and legal judgment rules for determining the reasons for the unfounded resolution of the shareholders meeting.The possible innovations of this article are as follows:First,this article takes the "identification of reasons for the failure of shareholders’meeting resolutions"as a research angle.Compared with the previous studies,this article is more targeted.Second,in terms of determining the reasons for the failure of the resolutions of the shareholders meeting,this article proceeds from the nature of shareholder meeting resolutions and on the basis of drawing on the foreign experience,putting forward the criteria of determination,forming a clear and reasonable thinking of determination and proposing the ’two-level’ method of determination,which are more in-depth than previous studies.Third,through sorting out and analyzing the cases of determination of the reasons for the failure of shareholder meeting resolutions in the past two years,this article aims at the practical problems after the introduction of the system of shareholder meeting’s resolution’s failure.This article categorizes the reasons for the flaws in the resolutions of the shareholders meeting in practice and clarifies which type of shareholder meeting’s resolution’s defects will cause the shareholder meeting’s resolution to fail.Moreover,it makes suggestions on the adjudication methodss,which is more practical than some previous studies that only emphasized theory.The shortcomings of this article are as follows:the inability to retrieve more foreign cases to provide more adequate support for the thesis research.Moreover,the paper proposes reasonable ideas and methods for determining the reasons for the unfounded resolution of the shareholder meeting,which are mainly based on past case problems and theoretical considerations.Subject to the lack of practical experience,their operational value still needs to be tested by practice.