论股东大会决议瑕疵及其救济

发布时间：2018-06-20 08:06

本文选题：股东大会决议 + 瑕疵　；参考：《西南政法大学》2011年硕士论文

【摘要】：股东大会是股份有限公司的最高权力机关,以决议的方式行使其权力,股东大会也是股东行使股东权的平台及对公司实现自己意志的途径。股东大会决议的作出必须遵守法律、行政法规及公司章程的规定,对决议的程序规定是为了保证作出的决议公平公正,保护股东的利益。股东大会作出决议如果违反规定的程序,作出的决议就存在程序上的瑕疵,决议的效力将会受到法律的否定性评价;决议的内容也必须符合法律和公司章程的要求,否则,决议的内容即存在瑕疵,其效力也会受到法律的否定性评价。如果股东大会决议存在瑕疵,则如何评价其效力、如何对其进行救济,对这些问题的探讨具有重要的理论和实践意义。我国《公司法》对于股东大会决议瑕疵及其救济作出了相应的制度安排,但是与其他国家和地区的先进经验相比,还有许多不足之处,仍需进一步完善。本文对股东大会决议瑕疵的两种类型作了具体的阐述,并对因受瑕疵影响所导致的决议的效力进行了分析,进而对于决议瑕疵的救济进行研究,最后提出了完善我国股东大会决议瑕疵及救济制度相应的立法建议。本文正文共分为三大部分。第一部分论述了股东大会决议瑕疵的类型及效力。瑕疵从性质上分为程序上的瑕疵和内容上的瑕疵,瑕疵决议的效力包括决议无效、可撤销和不成立。对决议瑕疵的性质及瑕疵所致决议效力的分析是对决议瑕疵进行救济的前提。第二部分论述了股东大会决议瑕疵的救济途径。股东大会决议瑕疵的救济途径,按救济方式分成决议瑕疵的治愈和瑕疵决议的诉讼两类。决议瑕疵的治愈是非司法救济方式,分为召集程序瑕疵的豁免、决议的撤回和决议的追认;瑕疵决议的诉讼是司法救济方式,相对应瑕疵决议的效力,分为决议无效之诉、撤销之诉和不成立之诉。该部分对决议瑕疵治愈救济的适用条件、适用范围、适用方式以及瑕疵决议诉讼救济的当事人、诉讼事由、起诉期间、法律后果等相关问题作了具体的论述。第三部分针对我国股东大会决议瑕疵及救济制度的不足之处提出了完善的建议。我国新《公司法》关于股东大会决议瑕疵及救济制度的规定主要体现在第二十二条,但我国新《公司法》对决议瑕疵所致的法律后果的规定并不完善,对于决议瑕疵的救济途径的规定也存在不足之处,该部分针对这些问题提出了完善的建议,包括完善股东大会瑕疵决议的效力分类;建立决议瑕疵的治愈制度;完善瑕疵决议的诉讼救济制度。
[Abstract]:The shareholders' general meeting is the supreme power organ of the joint stock limited company, and the shareholders' general meeting is also the platform for the shareholders to exercise the shareholder's right and the way to realize their will to the company. The resolution of the shareholders' general meeting must abide by the laws, administrative regulations and articles of association. The procedural provisions of the resolutions are to ensure the fairness and fairness of the resolutions made and to protect the interests of the shareholders. If a resolution is made by the shareholders' general meeting in violation of the prescribed procedures, there will be procedural flaws in the resolution, and the validity of the resolution will be subject to negative evaluation by the law. The contents of the resolution must also conform to the requirements of the law and the articles of association of the company, otherwise, The content of the resolution is flawed and its effect will be evaluated negatively by the law. If the resolution of shareholders' general meeting is defective, how to evaluate its effectiveness and how to remedy it are of great theoretical and practical significance. The company law of our country has made the corresponding system arrangement for the defect of the resolution of the shareholders' general meeting and its relief, but compared with the advanced experience of other countries and regions, there are still many deficiencies, which still need to be further improved. In this paper, two types of resolution defects of the shareholders' general meeting are elaborated, and the effectiveness of the resolution caused by the defects is analyzed, and then the relief of the resolution defects is studied. Finally, it puts forward the corresponding legislative suggestions to perfect the defect of resolution and remedy system of shareholders' general meeting in our country. The text of this paper is divided into three parts. The first part discusses the types and effects of resolution defects of shareholders' general meeting. Defects are divided into procedural defects and defects in content. The validity of defective resolutions includes invalid, revocable and untenable. The analysis of the nature of the resolution defect and the resolution effect caused by the defect is the premise to remedy the resolution defect. The second part discusses the remedy ways of shareholders' general meeting resolution defect. The remedy of resolution defect is divided into two categories: the remedy of resolution defect and the litigation of defective resolution. The remedy of resolution blemish is a non-judicial remedy, which is divided into the exemption of convening procedural defect, the withdrawal of resolution and the confirmation of resolution; the litigation of defective resolution is judicial remedy, corresponding to the effect of defective resolution, it is divided into the action of invalid resolution, The action of revocation and the action of untenable. This part has made the concrete discussion to the applicable condition, the scope of application, the way of application, the litigant of the remedy of the defective resolution, the cause of the lawsuit, the lawsuit period, the legal consequence and so on. In the third part, some suggestions are put forward for the defect of the resolution and the deficiency of the relief system. The provisions of the new Company Law on the defect and relief system of the resolution of the shareholders' general meeting are mainly embodied in Article 22, but the provisions of the New Company Law on the legal consequences caused by the defect of the resolution are not perfect. There are also deficiencies in the provision of remedies for resolution defects. This part puts forward perfect suggestions for these problems, including the improvement of the classification of the effectiveness of defective resolutions of the shareholders' general meeting, the establishment of a system for the cure of resolution flaws, and the establishment of a remedy system for the defects of the resolutions. Perfect the litigation relief system of defective resolution.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91

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