【作者】 刘艳艳；

【导师】 蔡立东；

【作者基本信息】 吉林大学 ， 民商法学， 2008， 硕士

【摘要】 作为一种依赖于程序、以“资本多数决”形式拟制的公司最高意思,股东大会决议的瑕疵问题备受人们关注。当股东大会决议存在程序瑕疵或内容违反章程瑕疵时,如何保护中小股东的合法权益便是其中的一项重要内容。我国现行《公司法》第22条规定了股东大会决议撤销制度,为中小股东利益的保护提供了明确的法律依据。但是与其他国家(地区)先进的立法例相比,我国公司法有关决议撤销制度的规定还很不完善。本文首先从探讨股东大会决议撤销的事由谈起,从股东大会决议撤销的提诉主体、撤销判决的效力以及滥诉的防止等方面逐渐完善股东大会决议撤销制度的框架;在此基础上,提出了对我国股东大会决议撤销制度进行完善的建议,以期能更好的发挥该制度的作用。更多还原

【Abstract】 The thesis is on the revocation of resolutions of shareholders’general meeting.As the authority meaning of a joint-stock company, the resolution of shareholders’general meeting receives the attention on its defectives and the remedy for its defectives. An important content of the defective system is how to protect the rights of minority shareholders when the resolutions of shareholders’general meeting has defective on its procedure or its content doesn’t adapt to articles of incorporation. In view of this problem, the current <Corporation Law > provides the system of the revocation of resolutions of shareholders’general meeting. But compared with advanced legislations of other countries (regions), the revocation system in our country has some deficiencies. Therefore, my essay mainly deals with the research on the revocation of resolutions of shareholders’general meeting, including the revocation reasons、the plaintiff of revocation、the binding force of revocation judgment and how to prevent the abusiveness of the revocation rights, etc..Part one is mainly on the revocation reasons of shareholders’general meeting resolutions.On the formation process of the shareholders’general meeting resolution, most countries (regions) in the world take“Majority Deciding”principle. The foundation of the“Majority Deciding”principle conforms to the basic logic of group actions in the modern society, go with the value requirement of economic society efficiency, and can improve the companies’interests. But this principle is an imperfect process justice, which can easily be abused by the shareholders who has the majority of the shares, causing“Majority Despotism”---That is the origin of resolution rescinding system. In details, the reasons of the resolution rescinding can be divided into two parts: defects in the decision-making process, which involves defects in the assembling process and defects in the deciding process, and defects due to the contradiction of the decisions.Though the defects of the shareholders’general meeting resolution rescinding violate the legal rights of the shareholders, they only do harm to the harmony between shareholders, which is of little damage compared to damage of the social orders. In view of this, the corporation laws in most countries (regions) say that the defects of shareholders’general meeting resolution can be avoided in particular conditions. These conditions are as follows: Firstly, When there are defects in the decision-making process, these defects can be redressed by the complete agreement of all the shareholders; Secondly ,when the right to rescind resolution defects expires, the defects of the shareholders’general meeting resolution is healed.Part two is mainly on the plaintiff of the revocation suit on the shareholders’general meeting resolution defective.According to the Civil Procedure Law, the plaintiff of a civil litigation is the one who has direct connection with the case. So it is no doubt that shareholders, as members of the shareholders’meeting and owners of the corporation, have the right to sue in a revocation suit. Judging by time, only the one, who is qualified to be a shareholder when the resolution is made as well as when he makes the litigation of rescinding, can take the action of the resolution rescinding. As for the particular shareholders, including the one who does not attend the meeting and the one who have no right to vote in the meeting, they give up or has no right to vote, but they still has the other shareholders’rights. And the effective of the meeting resolution will also have restraints over the shareholders who do not attend the meeting or who has no right to vote, so these shareholders should also have the right to litigate: They can still make the litigation of resolution rescinding. As for the shareholders who show no disagreement on spot, the shareholder disagreement system cannot be completely applied to our country. When a shareholder can prove that he is forced to express his meaning, he has the right to rescind his idea. And when his withdrawal makes the general meeting unstable, he has the right to make the litigation of resolution rescinding. But if a shareholder attends the meeting and does not show any disagreement on spot, he cannot make a litigation of this process defect thereafter. In addition, when a shareholder can prove that he agrees only on the decision of the congress but does not know the defects in the meeting process, he has the right to pick out the defects in the process and make a litigation of them.In the modern times, executives, the professional manager of the corporation, and supervisors, members of the standing supervising organization, are legal and reasonable to be the plaintiff of the litigation of rescinding. The base of its legality comes from three aspects as follows: Firstly, once taking effects, the resolutions of shareholders’general meeting will impose restrictions on the staff of the corporation, including the executives and supervisors; Secondly, it is the inevitable requirement of the rights and obligations of the executives and supervisors.;Thirdly, as professional managers of corporations, executives and supervisors have comprehensive information and skills. It is easier for them to find the defects of the Resolutions. To assert the long-term interests of the corporation and to maintain the normal order of the market, it is necessary to make the executives and supervisors the plaintiff of the litigation of the Shareholders’general meeting resolutions rescinding.Part three is mainly on the effectiveness of the revocation of the Shareholders’general meeting resolutions.This part starts with the effectiveness of the shareholders’general meeting resolution. Based on the classification of the Shareholders’general meeting resolutions, the effectiveness of the revocation of the shareholders’general meeting resolutions mainly pay attention to two aspects: the strength of the sentences and the retroactive effect of the resolution rescinding judgments. According to whether having direct effects on outer behaviors or not, resolutions of shareholders’general meeting can be divided into inner resolutions and outer resolutions; According to having influences on a third part or not, inner resolutions can be divided into pure inner resolutions and semi-inner resolutions. Pure inner resolutions have no effect on outer affairs; while semi-inner resolutions and outer resolutions impose no restriction on a third one, they can have some physical influences on the relationship of the third person and the corporation.As for the strength of the sentences, because of the specialty and solidarity of resolutions of shareholders’general meeting and in order to protect the interests of the people concerned fully, the strength of the sentences complies with the law principle of the strength of the sentences expansion, that is, the moment the judgment on defects is made, it imposes restrictions on the staff. As for the retroactive effect, in principle, the effects of the judgment of rescinding the resolutions should make retroactive unless the behavior of the corporation concerns public interests. We can protect the interests of the third part by some current civil system.Part four is mainly on the prevention of the abusiveness in the process of the shareholders’general meeting resolution rescinding.The right to rescind resolutions of shareholders’general meeting is a system which made to maintain the legal rights of shareholders and the long-term interests of corporations. But if there is no restricts, this system is easy to be abused by some shareholders, especially some professional shareholders. The main measures taken by most countries (regions) to restrict litigation of the resolution rescinding include the system of objective shareholders、the system of procedure guarantee、the system of rejects by judicial discretion, etc. As the second part has discussed on the applying of shareholder disagreement system in China, this part will concentrate on the procedure guarantee system and rejects system.Procedure guarantee system is introduced in the third article of the twenty-second item of <Corporation Law>, which provide a clear accordance for the prevention of abusing litigation. In specific practices, the procedure guarantee system of the company litigation, a special form of civil litigations, complies with the related regulations civil litigation guarantee: Firstly, the defendant should provide evidences to prove his innocent. Only when the corporation provides enough evidences to show that there is no defect in the resolutions of shareholders’general meeting, can the court allow the plaintiff provide related securities. Secondly, as for the number of the guarantee, under the legal system in effect of our country, People court should judge by <Civil Procedure Law> and <Guarantee Law> to find the balance between shareholders’interests and public interests.The corporation law in our country does not refer to the system of rejects by judicial discretion introduced by Japan and other countries. In view of its emphasizes on results and ignorance of the process and the purpose of building resolutions of shareholders’general meeting rescinding system, we should take a serious attitude towards the system of rejects by judicial discretion: It cannot be applied aimlessly without a clear law assurance at present;with the development of the process of making resolutions of shareholders’general meeting and legal conditions, we can build the base of the system of rejects by judicial discretion through judicature construction or other ways gradually.更多还原