股东大会决议瑕疵的法律问题探究
发布时间：2019-03-31 01:02
【摘要】：股东大会决议是股东依照法律或公司章程规定的程序所作出的团体性质的法律行为。股东大会决议一经有效作出,对全体股东、董事、监事以及公司高级管理人员都具有法律约束力。股东大会决议瑕疵是指股东大会的决议内容、程序违反法律或章程的规定,从而使得该决议因存在瑕疵而被撤销、确认无效和不成立。本文主要就决议可撤销、无效和决议不成立三种瑕疵形式展开讨论,具体地分析了它们的诉讼事由以及不同类型瑕疵的治愈方法,并针对瑕疵诉讼中面临的诉讼原告、被告的确定、起诉期间、诉讼担保以及判决的效力问题阐明观点,最后就我国立法中关于公司决议瑕疵规定的缺陷,提出相关的立法建议。 全文除前言和结语外,共有四部分组成。 第一部分论述了股东大会决议的性质、效力范围以及公司决议瑕疵的概念和立法规定。公司决议是具有团体性质的法律行为,欠缺法律行为要件的公司决议属于瑕疵决议,法律对程度极其严重瑕疵决议视为其不成立,对内容违反法律的瑕疵决议视为无效,而对程序违反法律或章程的瑕疵决议视为可撤销。 第二部分论述了股东大会决议瑕疵的类型、事由及瑕疵治愈。股东大会决议瑕疵有决议无效、可撤销和不成立三种情形,它们之间彼此是有区别的,不同的瑕疵决议所产生的原因也是不同的,部分瑕疵决议在满足了一定条件的情况下是可以治愈的。 第三部分论述的是股东大会决议诉讼程序,包括诉讼原告、被告的确定、起诉期间、诉讼担保和判决的效力。诉讼原告有权在法定起诉期间内向法院提起诉讼,被告应当出庭应诉,对股东的恶意起诉,被告公司有权要求其提供适当的担保,法院作出的判决,不仅对将来产生作用,而且在适当条件下对过去也有溯及力。 第四部分针对如何完善我国新《公司法》的规定,提出了立法建议。主要包括:将决议不成立作为一种单独的瑕疵诉讼形式、将股东大会决议违反行政规章的情形作为决议瑕疵的诉由、股东大会决议违反法律、行政法规未必导致一律无效、扩大原告的主体范围以及明确公司为诉讼被告。
[Abstract]:A general meeting resolution is a legal act of a group nature made by shareholders in accordance with the procedure prescribed by law or articles of association. A resolution of the general meeting shall be legally binding upon all shareholders, directors, supervisors and senior management of the company. The defect of the resolution of the general meeting refers to the contents of the resolution of the general meeting of shareholders, and the procedure violates the provisions of the law or articles of association, which causes the resolution to be revoked, invalid and not valid because of the defect in the resolution. This article mainly discusses three kinds of defect forms: resolution can be revoked, invalid and resolution not to be established, analyzes their causes of action and the cure methods of different types of defects, and aims at the lawsuit plaintiff, which is faced with in the defect litigation, and makes a detailed analysis of their causes of action as well as the cure methods of different types of defects. Defendant's definition, prosecution, lawsuit guarantee and the validity of judgment are expounded. Finally, some relevant legislative suggestions are put forward on the defects of the company resolution in our legislation. In addition to the preface and conclusion, there are four parts. The first part discusses the nature, the scope of validity, the concept and legislative provisions of the resolution of the shareholders' general meeting. A company resolution is a legal act of a group nature, a company resolution lacking elements of legal conduct belongs to a defective resolution, the law is regarded as not valid for the extremely serious defect resolution, and a defective resolution for the content violating the law is regarded as null and void. A defective resolution that violates the laws or regulations of the procedure shall be deemed to be revocable. The second part discusses the type, cause and cure of the defects in the resolution of the shareholders' meeting. There are three situations in which the resolution of the general meeting of shareholders is invalid, revocable and not valid. They are different from each other, and the reasons for different defective resolutions are different. Partial blemish resolutions can be cured if certain conditions are met. The third part discusses the procedure of shareholders' general meeting resolution, including the determination of litigation plaintiff and defendant, the validity of lawsuit guarantee and judgment during prosecution. Litigation plaintiff has the right to bring proceedings before the court within the period of legal prosecution, defendant shall appear in court to respond to the malicious prosecution of shareholders, defendant Company has the right to ask for appropriate guarantees, and the judgment issued by the court will not only have an effect on the future. There is also retroactivity to the past under appropriate conditions. The fourth part puts forward some legislative suggestions on how to perfect the provisions of the new Company Law of our country. It mainly includes: taking the resolution not to be established as a separate form of defective litigation, taking the case that the resolution of the shareholders' meeting violates the administrative rules and regulations as the cause of the blemish of the resolution; Expand the scope of plaintiff's main body and define the company for litigation defendant.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2450678
[Abstract]:A general meeting resolution is a legal act of a group nature made by shareholders in accordance with the procedure prescribed by law or articles of association. A resolution of the general meeting shall be legally binding upon all shareholders, directors, supervisors and senior management of the company. The defect of the resolution of the general meeting refers to the contents of the resolution of the general meeting of shareholders, and the procedure violates the provisions of the law or articles of association, which causes the resolution to be revoked, invalid and not valid because of the defect in the resolution. This article mainly discusses three kinds of defect forms: resolution can be revoked, invalid and resolution not to be established, analyzes their causes of action and the cure methods of different types of defects, and aims at the lawsuit plaintiff, which is faced with in the defect litigation, and makes a detailed analysis of their causes of action as well as the cure methods of different types of defects. Defendant's definition, prosecution, lawsuit guarantee and the validity of judgment are expounded. Finally, some relevant legislative suggestions are put forward on the defects of the company resolution in our legislation. In addition to the preface and conclusion, there are four parts. The first part discusses the nature, the scope of validity, the concept and legislative provisions of the resolution of the shareholders' general meeting. A company resolution is a legal act of a group nature, a company resolution lacking elements of legal conduct belongs to a defective resolution, the law is regarded as not valid for the extremely serious defect resolution, and a defective resolution for the content violating the law is regarded as null and void. A defective resolution that violates the laws or regulations of the procedure shall be deemed to be revocable. The second part discusses the type, cause and cure of the defects in the resolution of the shareholders' meeting. There are three situations in which the resolution of the general meeting of shareholders is invalid, revocable and not valid. They are different from each other, and the reasons for different defective resolutions are different. Partial blemish resolutions can be cured if certain conditions are met. The third part discusses the procedure of shareholders' general meeting resolution, including the determination of litigation plaintiff and defendant, the validity of lawsuit guarantee and judgment during prosecution. Litigation plaintiff has the right to bring proceedings before the court within the period of legal prosecution, defendant shall appear in court to respond to the malicious prosecution of shareholders, defendant Company has the right to ask for appropriate guarantees, and the judgment issued by the court will not only have an effect on the future. There is also retroactivity to the past under appropriate conditions. The fourth part puts forward some legislative suggestions on how to perfect the provisions of the new Company Law of our country. It mainly includes: taking the resolution not to be established as a separate form of defective litigation, taking the case that the resolution of the shareholders' meeting violates the administrative rules and regulations as the cause of the blemish of the resolution; Expand the scope of plaintiff's main body and define the company for litigation defendant.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【参考文献】
相关期刊论文 前5条
1 王彦明;股东大会决议的无效与撤销——基于德国股份法的研究[J];当代法学;2005年04期
2 蔡立东;杨宗仁;;论股东会决议撤销权的主体及其行使[J];当代法学;2008年05期
3 钱玉林;;论可撤销的股东大会决议[J];法学;2006年11期
4 黄文辉,黄建峰;论股东大会决议瑕疵的救济[J];贵州警官职业学院学报;2002年06期
5 张萍;郭翔;;论股东会决议瑕疵及其救济[J];泰安教育学院学报岱宗学刊;2008年01期
，本文编号：2450678
本文链接：https://www.wllwen.com/falvlunwen/gongsifalunwen/2450678.html
