Research On The Remedy System For Defects In Resolutions Of Bondholders' Meeting

In the context of the normalization of bond defaults,bondholders’ meeting,as an important means to protect the interests of bondholders,of which the status and function should be further emphasized.However,the current law of China does not provide any legal consequences or remedies for the defects of the resolution of the bondholders’ meeting.Bondholders are faced with many difficulties in claiming the resolution of defects through Article 134 and Article 85 of the Civil Code or seeking relief through the contract law and tort law.Such significant institutional gaps can easily undermine the confidence of bondholders.Therefore,it is necessary to establish a remedy system for defects in the resolution of bondholders’ meeting.Both the bondholders’ meeting and the bankruptcy creditors’ meeting are set up to protect the legitimate rights and interests of creditors and coordinate the conflicts of interests among different creditors,so the rules of the bankruptcy creditors’ meeting resolution relief have certain reference.However,based on the dominant position of the court and administrator in bankruptcy proceedings and the value objective of promoting fair and timely distribution of bankruptcy property,Bankruptcy Law states that only the creditors with damaged interests can request the court to rule to cancel the resolution,and the invalid confirmation mechanism of the resolution has not been established in China.The creditors cannot request to confirm the defect of the resolution through litigation.Compared with the relief of the resolution of bankruptcy creditors’ meeting,the current law divides the resolution of shareholders’ meeting into three types: invalid,retractable and untenable,and entrusts shareholders with the right to file a lawsuit against the resolution of defects of the meeting,which is more perfect and operable.Since both the bondholders’ meeting and the shareholders’ meeting adopt the principle of majority voting,the resolutions made by both of them are binding,and the formation of resolutions requires procedural guarantees,it may be the most reasonable and effective way to establish the resolution defect litigation system of the bondholders’ meeting by referring to the resolution defect litigation rules of the shareholders’ meeting,but at the same time,attention should be paid to the differences between the shareholders’ meeting and the shareholders’ meeting and their influence on the construction of specific rules.The defects in the resolution of the bondholders’ meeting shall include procedural defects and content defects.Content defects should include three situations: resolution content violates mandatory provisions of laws and administrative regulations,resolution content violates public order and good customs,and resolution matters exceed the scope agreed in the prospectus or the rules for bondholders’ meeting.As for the definition of procedural defects,if we refer to the way of enumerating the defects individually in the resolution of shareholders’ meeting,it is easy to cause the omission of defects.In this regard,procedural defects can be divided according to democratic principle and due process principle.On the basis of the general definition,some important program defects are listed,so as to achieve the combination of point and aspect of the definition effect.The resolution defects of the bondholders’ meeting can be divided into invalid resolution and voidable resolution.Giving the resolution revocable effect does not completely deny the legal effect of the resolution from the beginning,but makes it possible for the resolution to heal itself.At the same time,the resolution revocation lawsuit also has two important functions of promoting the legality of the resolution and protecting individual rights,so it is necessary to establish the resolution revocation system.The legal effect and litigation structure of the resolution not set up and the invalid resolution almost have no difference,and the purpose of requesting confirmation of the resolution not set up can be achieved by appropriately expanding the scope of the invalidity of the resolution.In addition,requesting confirmation of the resolution not set up may also bring high judicial review costs,so this kind of lawsuit is not of practical significance.Resolutions have different reasons for defects and their corresponding legal consequences should also be different.In this regard,the principle of proportion should be flexibly used,and corresponding legal consequences should be given according to the seriousness of defects.When the defect is very slight,the legal validity of defective resolutions should be confirmed and more flexible legal consequences should be given,so as to achieve a balance between the protection of individual rights of bondholders and the efficient exercise of collective rights of all bondholders.The remedies for the defects of the resolution of the bondholders’ meeting are mainly carried out in two ways: confirmation action and formation action.In the bondholders’ meeting resolution lawsuit,the plaintiff shall be limited to the bondholders who hold outstanding bonds,and the issuer may be qualified as plaintiff under special circumstances where the resolution is binding on the issuer.In particular,in a rescission action,the bondholders who are the plaintiffs must have an interest in the action and must hold a minimum proportion of the outstanding bonds.Considering the qualification of litigant,the relation with resolution defect and litigation economy,the trustee of bond can be regarded as the defendant.In addition,other bondholders other than the original defendant have the interest to participate in the litigation,may participate in the litigation as a third party.In the setting of the time limit for prosecution,a reprimand period of 30 days can be set for the action with the resolution withdrawn,while the action with the resolution invalid is in accordance with the general provisions of the limitation of action.The object of the lawsuit should be the specific defect claimed by the plaintiff.On the basis of this,the situation of repeated litigation can be further clarified.In order to achieve economic effect of litigation,legislation can make special provisions on compulsory combined trial for lawsuits filed against the same resolution but based on different defects.