The Research On Discretionary Rejection System Of The Defective Resolution Suit

Article 4 of the Interpretation of Company Law(IV)enacted in 2017 establishes for the first time the discretionary rejection system in Chinese law.In the lawsuit of revocation of company resolution,the court may reject at its discretion any slight flaw in meeting convening procedure or voting method that has no material impact on the resolution.However,there are some problems in this article,such as vague expression of legal terms and unclear scope of application.It fails to elaborate on the two requirements of "slight flaw" and "no material impact on the resolution".Therefore,in judicial practice,the meaning of the two is different,and there is a phenomenon of different judgments in the same case.Through the empirical analysis of the cases of discretionary rejection,the main reasons for the court’s discretionary rejection are summarized by comparing the number,trend,grade,cause of action,type of resolution and type of defect of the decision of appeal revocation and the cases of discretionary rejection.In addition to "procedural defects do not have substantial impact on the resolution",judicial practice also argues from the aspects of "defect cure","efficiency,externality and some special circumstances of corporate resolution" and "principle of integrity and fairness".It shows that the applicable standards are confused,and the boundaries between different systems and theories are unclear,so that they are mixed.The connotation and scope of application of discretionary rejection are clearly defined,and scientific applicable standards of discretionary rejection are put forward through comparative study and reference of systems and theories inside and outside the domain.Discretionary rejection applies only to voidable resolutions,not to invalidity or failure of resolutions,and only to procedural defects,not to breaches of statute.Typical cases summarize the main dispute focus of the case rejected at discretion,and the analysis of typical cases is helpful for readers to show the logic and thinking of the judgment documents in detail,and analyze the reasonableness and deficiency of the judgment.Scientific explanation of "slight flaw" and "no substantial impact on the decision" is the key to determine the criterion of discretionary rejection.At the same time,we should follow the logic and steps of "three steps" in applying the method of discretionary rejection.First,judge whether there is a procedural defect,and then judge whether the defect is slight,and take "whether it affects shareholders’ access to the information needed to make decisions" as the direct judgment standard of slight defect;Finally,judge whether the defect has a substantial impact on the resolution."Material impact" should be interpreted as "whether it affects shareholders’ right to participate in the meeting fairly",rather than just from the result of the resolution.If the defect deprives the shareholder of the right to obtain information,it is not a slight defect,but a major defect,which cannot be rejected at discretion and the resolution should be revoked.If the defect does not deprive shareholders of the right to obtain decision-making information,examine whether it will result in shareholders being unable to participate fairly in the formation of majority opinion.If significant damage is caused to the procedural rights of the shareholder,it does not fall into the category of "not having a material impact on the resolution" and the resolution shall be revoked by judgment;If the contrary,a discretionary rejection is granted.If this step is not followed,first judge whether the flaw has a substantial impact on the resolution,and do not take slight flaw as the main day,there will be errors in solving the problem steps,thus running counter to the legislative purpose of the discretionary rejection system.In three aspects,the distribution of burden of proof,the reference of defect cure theory and the adoption of interest measurement method,the system of discretionary rejection is improved and supplemented to make the system more systematic and complete.