公司决议撤销诉讼中裁量驳回制度实证研究
发布时间：2018-07-17 05:40
【摘要】：我国《公司法》第22条第2款规定了公司决议被撤销的情形,即当公司决议的召集程序、表决方式违反法律、行政法规或者公司章程,或者决议内容违反公司章程时,股东可以诉至法院,请求撤销瑕疵公司决议。根据规定,只要公司决议出现上述瑕疵,股东就有权利请求法院撤销该公司决议,不考虑该决议瑕疵的程度,也不考虑撤销该公司决议对公司的运行、股东及其他利益相关者带来的影响。这样做,可能会给股东滥诉创造机会,造成司法资源的浪费,损害公司、其他股东的利益,破坏经济的平稳运行。其他很多国家（地区）关于瑕疵公司决议的撤销有不同的规定,对于可撤销的公司决议赋予了法官自由裁量权,当公司决议的程序瑕疵程度轻微时,法官可以视情况驳回股东提起的撤销之诉。本文针对我国立法的缺失,在现有理论的基础上,采用实证分析、比较分析的方法,对收集到的样本案例进行数据分析,希望为我国的学理研究、司法实践等提供数据借鉴,以期对我国公司决议撤销诉讼中裁量驳回制度的构建有所帮助。正文分为四个部分:第一部分对公司决议撤销诉讼中的裁量驳回制度进行概述。介绍了该制度的概念、法律价值和法律效果。第二部分对案例样本进行分析。本文主要采取实证分析、比较分析的方法,从北大法宝案例库中搜集案例,将公司决议撤销诉讼中涉及裁量驳回的案件筛选出来,选取所需变量进行数据统计,通过统计案件的时间分布、案件的地区及审判等情况,分析公司决议撤销诉讼中裁量驳回制度在我国的实施情况。通过统计样本案例中涉诉被告公司股东的数量、涉诉公司的决议类型、法院裁量驳回的原因等数据,以分析出影响我国法院作出裁量驳回判决的因素。第三部分结合上述数据分析了司法实践中反映的主要问题。一是裁量驳回的考量因素扩大化;二是有轻程序重实体的倾向。第四部分是关于公司决议撤销诉讼中裁量驳回制度的构建。首先分析了该制度的理论基础;其次,提出规范法定驳回;再次,分析我国公司决议撤销诉讼裁量驳回制度适用范围的立法选择;最后提出建立轻微程序瑕疵考量因素的司法技术支持。通过考量各国（地区）立法,结合第二部分中对我国司法实践的分析进行选择。为避免我国法院裁量驳回实践中重实体轻程序的情况加重,应当加快公司决议撤销诉讼中裁量驳回制度的立法,在今后的《公司法》及其司法解释中加入该制度,法官应充分利用大数据支持,最高法应当多出台相应的案例加以指导。结论部分是对全文作出总结和归纳。
[Abstract]:Paragraph 2 of Article 22 of the Company Law of our country provides for the circumstances in which a company resolution is revoked, that is, when the convening procedure of a company resolution, the voting method violates the law, administrative regulations or articles of association, or the content of the resolution violates the articles of association of the company, Shareholders may appeal to the court for rescission of the defective company resolution. According to the regulations, shareholders have the right to request the court to rescind the company's resolution, regardless of the extent of its flaw, or the operation of the company by revoking the company's resolution, as long as the company's resolution is defective as described above. The impact of shareholders and other stakeholders. Doing so may create opportunities for shareholders to oversue, cause waste of judicial resources, harm the interests of companies and other shareholders, and undermine the smooth operation of the economy. Many other countries (regions) have different provisions on the revocation of defective company resolutions, giving judges discretion over revocable corporate resolutions, when the procedural flaws of corporate resolutions are minor, The judge may, as the case may be, dismiss the revocation action filed by the shareholders. In view of the lack of legislation in our country, based on the existing theories, this paper uses the methods of empirical analysis and comparative analysis to analyze the collected sample cases, hoping to provide data reference for our country's theoretical research, judicial practice and so on. In order to help the construction of discretion rejection system in our company resolution revocation litigation. The text is divided into four parts: the first part is an overview of the system of discretionary dismissal. This paper introduces the concept, legal value and legal effect of the system. The second part of the case sample analysis. This article mainly adopts the empirical analysis, the comparative analysis method, collects the case from the Peking University magic treasure case library, selects out the case which involves the discretion rejection in the company resolution revocation lawsuit, selects the required variable to carry on the data statistics, Based on the statistics of the time distribution of the case, the region of the case and the trial situation, this paper analyzes the implementation of the discretionary dismissal system in our country. Through statistics on the number of shareholders of the defendant company in the sample case, the resolution type of the litigant company, and the reasons for the court's discretion to reject, the factors that affect the court's decision to dismiss the judgment are analyzed. The third part analyzes the main problems reflected in the judicial practice combined with the above data. One is the expansion of discretionary rejection factors, the other is the tendency to light the procedure and the entity. The fourth part is about the construction of the discretion rejection system in the company resolution revocation litigation. First of all, it analyzes the theoretical basis of the system; secondly, it proposes to regulate the legal rejection; thirdly, it analyzes the legislative choice of the scope of application of the discretionary dismissal system of the company resolution revocation in our country. Finally, the establishment of minor procedural defects factors of judicial technical support. Through the consideration of national (regional) legislation, combined with the second part of the analysis of China's judicial practice to choose. In order to avoid the situation that the court of our country pays more attention to the substance than the procedure, we should speed up the legislation of the discretion rejection system in the litigation of company resolution, and add the system to the company law and its judicial interpretation in the future. Judges should make full use of big data support and Supreme Law should issue more cases to guide them. The conclusion part is to make the summary and the induction to the full text.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
本文编号：2129253
[Abstract]:Paragraph 2 of Article 22 of the Company Law of our country provides for the circumstances in which a company resolution is revoked, that is, when the convening procedure of a company resolution, the voting method violates the law, administrative regulations or articles of association, or the content of the resolution violates the articles of association of the company, Shareholders may appeal to the court for rescission of the defective company resolution. According to the regulations, shareholders have the right to request the court to rescind the company's resolution, regardless of the extent of its flaw, or the operation of the company by revoking the company's resolution, as long as the company's resolution is defective as described above. The impact of shareholders and other stakeholders. Doing so may create opportunities for shareholders to oversue, cause waste of judicial resources, harm the interests of companies and other shareholders, and undermine the smooth operation of the economy. Many other countries (regions) have different provisions on the revocation of defective company resolutions, giving judges discretion over revocable corporate resolutions, when the procedural flaws of corporate resolutions are minor, The judge may, as the case may be, dismiss the revocation action filed by the shareholders. In view of the lack of legislation in our country, based on the existing theories, this paper uses the methods of empirical analysis and comparative analysis to analyze the collected sample cases, hoping to provide data reference for our country's theoretical research, judicial practice and so on. In order to help the construction of discretion rejection system in our company resolution revocation litigation. The text is divided into four parts: the first part is an overview of the system of discretionary dismissal. This paper introduces the concept, legal value and legal effect of the system. The second part of the case sample analysis. This article mainly adopts the empirical analysis, the comparative analysis method, collects the case from the Peking University magic treasure case library, selects out the case which involves the discretion rejection in the company resolution revocation lawsuit, selects the required variable to carry on the data statistics, Based on the statistics of the time distribution of the case, the region of the case and the trial situation, this paper analyzes the implementation of the discretionary dismissal system in our country. Through statistics on the number of shareholders of the defendant company in the sample case, the resolution type of the litigant company, and the reasons for the court's discretion to reject, the factors that affect the court's decision to dismiss the judgment are analyzed. The third part analyzes the main problems reflected in the judicial practice combined with the above data. One is the expansion of discretionary rejection factors, the other is the tendency to light the procedure and the entity. The fourth part is about the construction of the discretion rejection system in the company resolution revocation litigation. First of all, it analyzes the theoretical basis of the system; secondly, it proposes to regulate the legal rejection; thirdly, it analyzes the legislative choice of the scope of application of the discretionary dismissal system of the company resolution revocation in our country. Finally, the establishment of minor procedural defects factors of judicial technical support. Through the consideration of national (regional) legislation, combined with the second part of the analysis of China's judicial practice to choose. In order to avoid the situation that the court of our country pays more attention to the substance than the procedure, we should speed up the legislation of the discretion rejection system in the litigation of company resolution, and add the system to the company law and its judicial interpretation in the future. Judges should make full use of big data support and Supreme Law should issue more cases to guide them. The conclusion part is to make the summary and the induction to the full text.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.291.91
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1 杨金;公司决议撤销诉讼中裁量驳回制度实证研究[D];大连海事大学;2017年
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