Study On The Discretionary Rejection System Of The Action Of Company Resolution Revocation

The Company Law Interpretation IV issued in 2017 provides for a discretionary dismissal system,which is a refined and special adjudication rule for shareholders or directors to file a lawsuit to revoke a corporate resolution due to procedural defects before and during a shareholders’ meeting or a board of directors’ meeting,which means that if a procedural defect in a corporate resolution is minor and the procedural defect does not have an important The court shall decide not to revoke the resolution of the company.However,due to the ambiguity of the judicial interpretation regarding the elements of the applicable discretionary dismissal system,the system gives judges great discretionary power.Since the discretionary dismissal system was established in 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(IV)" in 2017,the number of cases applying the discretionary dismissal system has increased significantly.However,an empirical study of the cases in which the discretionary dismissal system has been applied in various places shows that the application of the system by courts at different levels often results in different judgments in the same case,and this problem is largely due to the ambiguity of the terminology of the discretionary dismissal system itself.In addition,it can be seen from the court’s decisional documents that the judges’ logic in deciding such cases varies and is not reasonably argued,which poses a great challenge to the judges in understanding and applying the discretionary dismissal system.This paper intends to conduct an empirical study on the cases in which the discretionary dismissal system is applied in judicial practice,and then tries to put forward some feasible opinions on the improvement of the system in light of the outstanding problems of different kinds of defects in the empirical study and the current legal system.Firstly,the empirical analysis shows that there are several problems with the current discretionary dismissal system in China: firstly,the value orientation is unclear,specifically,it involves the question of which takes precedence:substantive justice or procedural justice;secondly,the ambiguity of the requirements for discretionary dismissal,specifically,the ambiguity of the scope of procedural defects,which leads to the application of the discretionary dismissal system to some cases that should not be applied,but simply dismissed.The second is the ambiguity of the scope of procedural defects,which leads to the application of discretionary dismissal in cases that should not be subject to discretionary dismissal and should be dismissed outright,as well as the uncertainty of the norms of minor defects and substantive effects,which often leads to uncertainty in the application of the discretionary dismissal system and misconceptions in the logic of application.Lastly,we will give specific solutions to the above problems: First,from the guiding cases issued by the Supreme People’s Court,we will give full affirmation to the value orientation of the discretionary dismissal system,which is based on substantive justice and supplemented by procedural justice,and at the same time,in order to avoid the phenomenon of judges unreasonably ignoring procedural justice,so that judges will bear the responsibility of justifying the concession of procedural justice to substantive justice,so as to make judges correctly grasp the inner relationship between substantive justice and procedural justice in judicial practice.The second is to clarify the conditions of application of the discretionary dismissal system,which can be further stipulated in the judicial interpretation by way of enumeration for "minor defects" and "substantial impact",giving judges the right to make a decision on whether to cite the minor to clarify the major or to cite the major.In addition,it is possible to clarify the conditions for the application of the discretionary rejection system.In addition,the court should clarify the rebuttable nature of the defective expression of interest and further improve the specific circumstances of the discretionary dismissal system,so that the system can further play its functional role and adapt to the development trend of economy and society;thirdly,the court should dismiss the lawsuit directly if the directors or shareholders involved in the case did not raise objections from before to after the convening of the meeting despite the defective convening of the meeting,so as to clarify from the legislation In this way,the court should clarify the system of curing defective resolutions from the legislation and reduce the waste of judicial resources as much as possible.