Viewpoint | The Influence of the Unestablished Company Resolution on the Cancellation of Change Registration-From the Perspective of Judicial Application of Paragraph 4 of Article 22 of the Company Law
Published:
2021-11-26
Foreword: The company resolution is the meaning of the company's authority, which affects and reflects the company's business decision-making and internal governance will, and the company's application for change registration to the registration authority must be based on an effective company resolution. The fourth paragraph of Article 22 of China's "Company Law" stipulates that the company can apply to the registration authority for cancellation of the change registration according to the effective judgment document after the company resolution is invalid and revoked. However, there is no specific regulation on whether the company resolution can be applied for cancellation of the change registration. The approval criteria held by the registration authorities in different regions are not the same. There are many disputes in practice, the introduction of clearer legal guidelines in the area of registration authority approval scales has become a real need. 1 The conceptual background of the company's resolution is not established. Before the introduction of the "Company Law Interpretation IV", my country has always adopted a "dichotomy" for the form of corporate resolutions, like Germany, Switzerland, and Taiwan ". The so-called "dichotomy" refers to the validity of the company's resolution defects into procedural defects and content defects, and respectively identified as revocable and invalid, its legal logic is based on the analysis of the degree of resolution defects, serious defects constitute invalid reasons, relatively minor general defects constitute revocable reasons. The division of the validity of the "dichotomy" for the company's resolution is relatively simple and direct, but the defects are also obvious: the establishment of a legal act is a prerequisite for the validity of a legal act, and only after the establishment of a legal act can it be judged whether it is valid. The constituent elements and value orientations of the two are not the same. The establishment element focuses on the objective evaluation of the facts, while the effective element is the secondary value evaluation of whether the established legal act violates the mandatory provisions and social public order and good customs. However, the revocation or invalidity of a resolution is premised on the establishment of the resolution, and when the resolution is not established at all, it is undoubtedly wrong to judge the validity of its revocation or invalidity. Article 5 of the Interpretation of the Company Law adds a lawsuit of non-establishment of the resolution, which means that China has divided the company resolution into three cases: non-establishment, revocable and invalid, and has moved from the "dichotomy" of the determination of the validity of the resolution to the "trichotomy". The "trichotomy", based on the system of meaning in the theory of legal acts, separates the establishment of a resolution from its entry into force. The essence of corporate resolution is the act of resolution, and the fundamental feature of the act of resolution is that it takes the meaning of majority decision to form a mechanism in accordance with the requirements of procedural justice. The company resolution as the company's meaning, unlike the natural person to make a meaning may only need to go through a psychological weighing process, the establishment of the company resolution to comply with the statutory or articles of association agreed voting methods or procedures as a necessary condition, does not meet the procedural value of the resolution can not be recognized as the company's meaning. 2 Legal provisions 1. Article 40 of the regulations on the Administration of Company Registration: if a company applies to the company registration authority for cancellation of change registration in accordance with the provisions of Article 22 of the Company Law, it shall submit the following documents: The application signed by the legal representative of the (I) company; the judgment document of the (II) people's court. 2. Article 22, paragraph 4, of the Company Law: if the company has gone through the change registration in accordance with the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to cancel the change registration. 3. Article 5 of Interpretation IV of the Company Law: If the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors has one of the following circumstances, if the parties claim that the resolution is not established, the people's court shall support it... 3 Disputes in Practice There are two controversial views in practice: The first point of view is that Article 40 of the Regulations on the Administration of Company Registration and the fourth paragraph of Article 22 of the Company Law only stipulate two legal situations: the people's court declares the resolution invalid and revokes the resolution. The registration authority can approve the company's application for cancellation of change of registration based on the effective judgment that the resolution is invalid or the resolution is revoked, the registration authority needs to comply with the requirements of administration according to law. The law cannot do without authorization. In the absence of clear provisions, the application for cancellation of change registration based on the effective judgment of "the resolution is not established" lacks legal basis and should not be approved. The second view is that although the invalidity and revocation of resolutions stipulated in paragraph 4 of Article 22 of the Company Law are both for resolutions that have already been established, there is no clear provision for the circumstances under which resolutions are not established. However, a resolution that is not established is of course not legally binding and does not produce legal effect. The consequences of non-establishment are even more than invalid and revocable. The applicant may apply to the company registration authority for cancellation of the change registration based on the effective judgment of the resolution that is not established. The registration authority shall approve it in accordance with the law. 4 The author suggests The author agrees with the second view, for the following reasons: 1. In August 2017, the Supreme People's Court issued the Supreme People's Court on the application of<中华人民共和国公司法>When answering a reporter's question, Judge Du Wanhua, a full-time member of the Judicial Committee of the Supreme People's Court, replied as follows: "Article 22 of the Company Law of our country stipulates that the actions of confirming the invalidity of the resolution and revoking the resolution are all aimed at the resolution that has already been established and do not cover the situation where the resolution is not established. In our view, from the interpretation of the system, a resolution that is not established is of course not legally binding and should be an implied provision of company law. Therefore, Article 5 of the" Interpretation IV of the Company Law "stipulates that the action of the resolution is not established, together with the action of invalidation of the resolution and the action of revocation of the resolution, together constitute the pattern of" trichotomy ". The Supreme Court's attitude towards this can also be seen from the Supreme Court's previous communiqué cases: whether a legal act is established or not is a matter of factual judgment, the validity of a legal act is a matter of legal value judgment, and if a resolution lacks basic establishment elements, there is no question of effectiveness evaluation. Unestablished civil legal acts do not have legal effect, which is in line with the basic logic of the law. The legislature does not need to make separate legislation on this issue. Moreover, the background of the promulgation of the Interpretation IV of the Company Law is that the Supreme People's Court uses the way of issuing judicial interpretations to fill the loopholes in Article 22 of the Company Law. Therefore, Article 5 of the Interpretation IV of the Company Law stipulates that the resolution is not established, it should be the same as the invalidity and revocability of the resolution, which should belong to the applicable circumstances of Article 22 of the Company Law, and the failure of the resolution can be regarded as one of the circumstances in which the company applies to the registration authority to cancel the registration of the change. 2. Whether it is the theory of legal acts or judicial practice in our country, it is recognized that "the resolution is not established" can be used as the applicable situation stipulated in the fourth paragraph of Article 22 of the "Company Law". For example, the second item of Article 4 of the "Interim Administrative Measures for the Cancellation of Enterprise Registration by Sichuan Provincial Industry and Commerce and Market Supervision Authorities" clearly includes the non-establishment of the resolution of the shareholders' meeting as one of the cancellation of registration by the registration by the registration authority, for example, the civil judgment of Zhengzhou intermediate people's court (2018 Yu 01 min zong No. 4885) and other effective documents also regard the non establishment of the resolution as the implied application of Article 22 of the company law. In practice, the non establishment of the resolution should also be regarded as the situation that the company applies to the registration authority to cancel the change registration. Lawyer Profile Chen Xiaotong, male, corporate lawyer of Shandong Zhongcheng Qingtai (Jinan) Law Firm, Bachelor of Law of Shandong University, Master of International Commercial Law and Maritime Law of Swansea University, UK, Outstanding Young Lawyer of Shandong Province, Director of European and American Alumni Association of United Front Work Department of Shandong Provincial Committee of the Communist Party of China, Student entrepreneurship mentor of Jinan University. Since its official practice in June 2014, its work has mainly been to serve as perennial legal adviser to medium and large state-owned enterprises, banks and other financial institutions, special legal adviser to financial institutions for enterprise investment and financing projects, and special legal adviser to capital market business. conduct legal risk assessment on the main business of enterprises, and issue legal opinions for daily operation of enterprises and special projects. Chen Xiaotong's lawyer team has experience in serving many large and medium-sized state-owned enterprises, banks, and listed companies. They have certain experience in corporate governance of state-owned enterprises, corporate restructuring, laws and regulations of listed companies, capital market business, etc., and are familiar with procedures and relevant laws and regulations. In terms of non-litigation business, the team has been responsible for the issuance of corporate bonds, corporate bonds, medium-term notes, ultra-short-term financing bills, debt financing plans, listing on the company's main board and asset securitization, and is familiar with the characteristics of the legal field of investment and financing in the capital market. The main consultants who have served since their practice are: shandong Provincial Development and Reform Commission, Shandong Iron and Steel Group Co., Ltd., Jinan Iron and Steel Group Co., Ltd., Shandong Commercial Group Co., Ltd., Lushang Real Estate Co., Ltd., Shandong Branch of People's Insurance Company of China, Industrial and Commercial Bank of China Limited Shandong Branch, Standard Chartered Bank Jinan Branch, Jinan Rural Commercial Bank Co., Ltd., Qingdao Bank Co., Ltd. Jinan Branch, Jiyang Rural Commercial Bank Co., Ltd., Qingdao Huangdao Development (Group) Co., Ltd., Qingdao West Coast New Area Fusion Holdings Co., Ltd., Weifang Infrastructure Construction Investment and Development Co., Ltd. and other units. Contact number: 15614682525 E-mail: eroscxt@163.com</中华人民共和国公司法>
Foreword:The company resolution is the meaning of the company's authority, which affects and reflects the company's business decision-making and internal governance will, and the company's application to the registration authority for change registration must be based on a valid company resolution.
The fourth paragraph of Article 22 of China's "Company Law" stipulates that the company can apply to the registration authority for cancellation of the change registration according to the effective judgment document after the company resolution is invalid and revoked. However, there is no specific regulation on whether the company resolution can be applied for cancellation of the change registration. The approval criteria held by the registration authorities in different regions are not the same. There are many disputes in practice, the introduction of clearer legal guidelines in the area of registration authority approval scales has become a real need.
1
The conceptual background of the company's resolution is not established.
Before the introduction of the "Company Law Interpretation IV", my country has always adopted a "dichotomy" for the form of corporate resolutions, like Germany, Switzerland, and Taiwan ". The so-called "dichotomy" refers to the validity of the company's resolution defects into procedural defects and content defects, and respectively identified as revocable and invalid, its legal logic is based on the analysis of the degree of resolution defects, serious defects constitute invalid reasons, relatively minor general defects constitute revocable reasons.
The division of the validity of the "dichotomy" for the company's resolution is relatively simple and direct, but the defects are also obvious: the establishment of a legal act is a prerequisite for the validity of a legal act, and only after the establishment of a legal act can it be judged whether it is valid. The constituent elements and value orientations of the two are not the same. The establishment element focuses on the objective evaluation of the facts, while the effective element is the secondary value evaluation of whether the established legal act violates the mandatory provisions and social public order and good customs. However, the revocation or invalidity of a resolution is premised on the establishment of the resolution, and when the resolution is not established at all, it is undoubtedly wrong to judge the validity of its revocation or invalidity.
Article 5 of the Interpretation of the Company Law adds a lawsuit of non-establishment of the resolution, which means that China has divided the company resolution into three cases: non-establishment, revocable and invalid, and has moved from the "dichotomy" of the determination of the validity of the resolution to the "trichotomy". The "trichotomy", based on the system of meaning in the theory of legal acts, separates the establishment of a resolution from its entry into force.
The essence of corporate resolution is the act of resolution, and the fundamental feature of the act of resolution is that it takes the meaning of majority decision to form a mechanism in accordance with the requirements of procedural justice. The company resolution as the company's meaning, unlike the natural person to make a meaning may only need to go through a psychological weighing process, the establishment of the company resolution to comply with the statutory or articles of association agreed voting methods or procedures as a necessary condition, does not meet the procedural value of the resolution can not be recognized as the company's meaning.
2
Legal provisions
1. Article 40 of the regulations on the Administration of Company Registration: if a company applies to the company registration authority for cancellation of change registration in accordance with the provisions of Article 22 of the Company Law, it shall submit the following documents:
The application signed by the legal representative of the (I) company; the judgment document of the (II) people's court.
2. Article 22, paragraph 4, of the Company Law: if the company has gone through the change registration in accordance with the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors, after the people's court declares the resolution invalid or revokes the resolution, the company shall apply to the company registration authority to cancel the change registration.
3. Article 5 of Interpretation IV of the Company Law: If the resolution of the shareholders' meeting or the general meeting of shareholders or the board of directors has one of the following circumstances, if the parties claim that the resolution is not established, the people's court shall support it...
3
Disputes in Practice
There are two controversial views in practice:
The first view is that:Article 40 of the Regulations on the Administration of Company Registration and the fourth paragraph of Article 22 of the Company Law only stipulate two legal situations: the people's court declares the resolution invalid and revokes the resolution. The registration authority may approve the company's application for cancellation of registration of change according to the effective judgment of the resolution invalid or the resolution revoked. However, it is not clearly stipulated that "the resolution is not established" can be used as the situation of applying for cancellation of registration of registration of change, the registration authority needs to comply with the requirements of administration according to law. The law cannot do without authorization. In the absence of clear provisions, the application for cancellation of change registration based on the effective judgment of "the resolution is not established" lacks legal basis and should not be approved.
The second view is that:Although the invalidity and revocation of resolutions stipulated in paragraph 4 of Article 22 of the Company Law are both for resolutions that have already been established, there is no clear provision for the circumstances under which resolutions are not established. However, a resolution that is not established is of course not legally binding and does not produce legal effect. The consequences of non-establishment are even more than invalid and revocable. The applicant may apply to the company registration authority for cancellation of the change registration based on the effective judgment of the resolution that is not established. The registration authority shall approve it in accordance with the law.
4
The author suggests
I agree with the second view.The reasons are as follows:
1. In August 2017, the Supreme People's Court issued the Supreme People's Court on the application of<中华人民共和国公司法>When answering a reporter's question, Judge Du Wanhua, a full-time member of the Judicial Committee of the Supreme People's Court, replied as follows: "Article 22 of the Company Law of our country stipulates that the actions of confirming the invalidity of the resolution and revoking the resolution are all aimed at the resolution that has already been established and do not cover the situation where the resolution is not established. In our view, from the interpretation of the system, a resolution that is not established is of course not legally binding and should be an implied provision of company law. Therefore, Article 5 of the" Interpretation IV of the Company Law "stipulates that the action of the resolution is not established, together with the action of invalidation of the resolution and the action of revocation of the resolution, together constitute the pattern of" trichotomy ". The Supreme Court's attitude towards this can also be seen from the Supreme Court's previous communiqué cases: whether a legal act is established or not is a matter of factual judgment, the validity of a legal act is a matter of legal value judgment, and if a resolution lacks basic establishment elements, there is no question of effectiveness evaluation.
Unestablished civil legal acts do not have legal effect, which is in line with the basic logic of the law. The legislature does not need to make separate legislation on this issue. Moreover, the background of the promulgation of the Interpretation IV of the Company Law is that the Supreme People's Court uses the way of issuing judicial interpretations to fill the loopholes in Article 22 of the Company Law. Therefore, Article 5 of the Interpretation IV of the Company Law stipulates that the resolution is not established, it should be the same as the invalidity and revocability of the resolution, which should belong to the applicable circumstances of Article 22 of the Company Law, and the failure of the resolution can be regarded as one of the circumstances in which the company applies to the registration authority to cancel the registration of the change.
2. Whether it is the theory of legal acts or judicial practice in our country, it is recognized that "the resolution is not established" can be used as the applicable situation stipulated in the fourth paragraph of Article 22 of the "Company Law". For example, the second item of Article 4 of the "Interim Administrative Measures for the Cancellation of Enterprise Registration by Sichuan Provincial Industry and Commerce and Market Supervision Authorities" clearly includes the non-establishment of the resolution of the shareholders' meeting as one of the cancellation of registration by the registration by the registration authority, for example, the civil judgment of Zhengzhou intermediate people's court (2018 Yu 01 min zong No. 4885) and other effective documents also regard the non establishment of the resolution as the implied application of Article 22 of the company law. In practice, the non establishment of the resolution should also be regarded as the situation that the company applies to the registration authority to cancel the change registration.
Lawyer Profile
Chen Xiaotong, male, corporate lawyer of Shandong Zhongcheng Qingtai (Jinan) Law Firm, Bachelor of Law of Shandong University, Master of International Commercial Law and Maritime Law of Swansea University, UK, Outstanding Young Lawyer of Shandong Province, Director of European and American Alumni Association of United Front Work Department of Shandong Provincial Committee of the Communist Party of China, Student entrepreneurship mentor of Jinan University. Since its official practice in June 2014, its work has mainly been to serve as perennial legal adviser to medium and large state-owned enterprises, banks and other financial institutions, special legal adviser to financial institutions for enterprise investment and financing projects, and special legal adviser to capital market business. conduct legal risk assessment on the main business of enterprises, and issue legal opinions for daily operation of enterprises and special projects.
Chen Xiaotong's lawyer team has experience in serving many large and medium-sized state-owned enterprises, banks, and listed companies. They have certain experience in corporate governance of state-owned enterprises, corporate restructuring, laws and regulations of listed companies, capital market business, etc., and are familiar with procedures and relevant laws and regulations. In terms of non-litigation business, the team has been responsible for the issuance of corporate bonds, corporate bonds, medium-term notes, ultra-short-term financing bills, debt financing plans, listing on the company's main board and asset securitization, and is familiar with the characteristics of the legal field of investment and financing in the capital market.
The main consultants who have served since their practice are:Shandong Provincial Development and Reform Commission, Shandong Iron and Steel Group Co., Ltd., Jinan Iron and Steel Group Co., Ltd., Shandong Commercial Group Co., Ltd., Lushang Real Estate Co., Ltd., Shandong Branch of People's Insurance Company of China, Industrial and Commercial Bank of China Limited Shandong Branch, Standard Chartered Bank Jinan Branch, Jinan Rural Commercial Bank Co., Ltd., Qingdao Bank Co., Ltd. Jinan Branch, Jiyang Rural Commercial Bank Co., Ltd., Qingdao Huangdao Development (Group) Co., Ltd., Qingdao West Coast New Area Fusion Holdings Co., Ltd., Weifang Infrastructure Construction Investment and Development Co., Ltd. and other units.
Contact Phone:15614682525
E-mail:eroscxt@163.com
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