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On the shareholders' meeting and its resolutions consequences

Author: ZhangWeiBi From: www.yourpaper.net Posted: 2009-07-07 13:28:18 Read:
Abstract: The shareholders' meeting is the highest authority by all the shareholders in the company, reflected in the decision to go beyond the day-to-day affairs of the company must be made by the shareholders' meeting, shareholders will be the company meant the decision authority, and the shareholders' meeting is the company The meaning of the manifestations.
Keywords: shareholders' meeting; shareholders voting rights; misjudged cases investigated system

1 on the voting rights of the shareholders 'meeting and shareholders' existing mechanism

1.1 shareholders will be defined and the company's relationship
The shareholders' meeting is the highest authority by all the shareholders in the company, reflected in the decision to go beyond the day-to-day affairs of the company should be made by the shareholders' meeting, most of the other organs, as well as their respective functions, should be determined by the shareholders' meeting. Although most of the national companies legislation gave up Shareholders Centrism "and the use of" centrism of the Board of Directors, shareholders will position as the highest authority has not wavered.
Shareholders will exist in two ways: one is the conference itself as abstract, conceptual permission to retain the status (authority), and the other one is as specific, realistic privileges exercised. Tong said that the shareholders' meeting as the company's meeting of the body organs, making the exercise of its powers and company mean only the form of a resolution by the meeting and prepare an. Therefore, the front of the shareholders' meeting, formation, and the consequences of a very important impact on the operations of the entire company. 1.2 the relationship of the shareholders and the Company Law
The Companies Act also gives the company left the autonomous space, to ensure the flexibility of the company handling the transaction. Shareholders will exercise the power to deal with resolutions affairs based on other than the law, according to the articles of association conferred. Institutional differentiation in the Corporation, the division of authority, a space power in the shareholders 'meeting and the Board of Directors of the inherent permissions have much authority the shareholders' meeting and the board of directors in this space, is variable. Variables is that the provisions of the Articles of Association and Articles of matters that belong to the shareholders 'meeting resolution in this variable, entirely by the shareholders' meeting to seize the initiative. The provisions of Section 416 of the Korean Commercial Code, issue new shares after the company was founded, decided by the board of directors by the provisions of the Constitution, but also can be decided by the shareholders' meeting. Therefore, the shareholders' meeting and the operation of the company's autonomy, to fill a vacancy of a sense of the Companies Act norms.
1.3 of the shareholders 'meeting with shareholders, the shareholders' voting rights
The company has the external characteristics - legal, but the essence of the company's shareholders are the owners 'equity of the company enjoyed by the company shareholders' investment tools. Shareholders' equity, that the rights given to the shareholders of the Companies Act or the Articles of Association of the Company as consideration to the transfer of investment property ownership. Companies Act or the Articles of Association of the Company given the rights of shareholders, the shareholders will come through participation in shareholders exercise, one of the most important is that the voting rights of shareholders. Shareholders' voting rights is based on shareholder status enjoyed by a certain intention and the right to be recorded in the motion submitted to the shareholders. Shareholders' voting rights is the inherent right of the shareholders, unless the laws and constitution specifically provided without the right to vote or voting rights restricted, otherwise it can not be denied. Personality and shareholders of the Companies Act requires a company independent of each other, the voting rights of the shareholders of the bridge is linked to the company's interests and the interests of the shareholders.
1.4 of the voting rights of the shareholders exercise
Of the voting rights exercised, the adoption of the resolution of the shareholders' meeting mechanism and nature of the company itself is great. Focus on the nature of the Limited owned together, such as Germany, funded for the standards given the right to vote, and according to the type of shares held by the shareholders to exercise their voting rights. The provisions of the German Stock Act If the nominal value of shares, according to its nominal value of the exercise of voting rights, if the proportion of shares, depending on the amount of stock held by vote. Each share has one vote, in addition to the preference shares without voting rights.
In stock company, owned an aggregate of its nature, the composite nature of the shareholders 'meeting and the openness of the capital, the Companies Act provides that the shares of the shareholders' meeting of the company's operation also affected, section 104 of the Companies Act provides that shareholders of the implementation of a a voting rights of the shares, the shareholders' meeting by adopting the "capital of majority." Of course there are exceptions, Companies Act to the interests of the shareholders of the maximization of the estate, but the interests of the minority shareholders in this principle may be damaged, and there are exceptional circumstances in order to reflect the fair of the Companies Act, such as cumulative voting system, a non-voting shares. 2 shareholder resolution consequences and countermeasures

2.1 shareholders 'meeting and the shareholders' voting rights
Different from the point of view of the interests of shareholders station matters be submitted to the shareholders for consideration to make different choices and different voting. Finally, in accordance with the resolution made by the "capital of majority is not absolutely effective? If this resolution will damage the interests of the disadvantaged shareholders or classes of shareholders, apparently the entry into force of the resolution would be departing from the principle of fairness of Commercial Law. In this regard, the law should regulate it. 345 of the Japanese Commercial Code provides that: "The company has issued a number of shares, such as changes to the Articles of Association class of shareholders will be damage to the changes to the Articles of Association, in addition to a resolution of the general meeting of shareholders, but also to such shareholders' meeting the resolution. "
Companies Act implementation of the the shareholder primacy freedom, but this does not mean absolute freedom of the Companies Act that entitle the shareholder to exercise their rights at the shareholders' meeting. "Precisely the liberal enormous economic success, will bring disaster liberal" it is necessary to exercise voting rights of large shareholders and small shareholders exercise voting rights mechanisms on balance Section 106 of the Companies Act and prescribed the shareholders' meeting to elect directors, supervisors in accordance with the provisions of the Articles of Association of the Company or the resolution of the general meeting of shareholders, the implementation of tired knot voting system. This system in addition to be able to protect minority shareholders' interests role, but also to a certain extent to avoid resolution matters not pass.
2.2 resolution consequences and countermeasures
The shareholders' meeting is intended to mean the formation of specific, legally binding meaning, formed the company will. Although the resolution of the shareholders 'meeting is a legal act, but not the meaning of the Civil Code, said intention civil law invalid, revocation provisions can not be applied to the resolution of the shareholders' meeting revoked. Of course, because of the flawed resolution on the content or the program, its effectiveness will certainly be affected. "Company Law" will be in violation of laws, administrative regulations and the Articles of Association of the Company as Defective Resolution, Litigation way of relief of stakeholders, the shareholders' meeting undo v. filed. From litigation in terms of the interests of the right of appeal is v. presupposes the existence of the right to appeal the Companies Act to the shareholders on the shareholders 'meeting, implied binding until resolution of the shareholders' meeting of the shareholders.
China's "Company Law" is not on the invalid, the consequences be undone resolution provisions. Some scholars believe that the owner of the company that shareholders should bear most of the decision-making risk. Consequences of responsibility-sharing within the company, according to this view, to the shareholders. Shareholders on the appointment of staff is divided vote that for some agree, some abstained, some opposition. How to allocate responsibility between shareholders of the Companies Act legislation blank. The phenomenon is likely to occur between the shareholders buck each even lead to conflicts.
Commercial cases should be handled in accordance with the principles of conscience and fair, in the minutiae of the legal dispute is not appropriate. So how do you assign this responsibility is in accordance with their conscience and fair? I believe that the commitment of shareholders to exercise voting rights of shareholders will be consequences can learn the same is the implementation of the accountability system of "majority rule" to sit on the erroneous cases. In our court system, the Full Court judgment is the implementation of the majority of the collegial panel members.
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