公司決議撤銷訴訟中裁量駁回制度實(shí)證研究
發(fā)布時間：2018-07-17 05:40
【摘要】：我國《公司法》第22條第2款規(guī)定了公司決議被撤銷的情形,即當(dāng)公司決議的召集程序、表決方式違反法律、行政法規(guī)或者公司章程,或者決議內(nèi)容違反公司章程時,股東可以訴至法院,請求撤銷瑕疵公司決議。根據(jù)規(guī)定,只要公司決議出現(xiàn)上述瑕疵,股東就有權(quán)利請求法院撤銷該公司決議,不考慮該決議瑕疵的程度,也不考慮撤銷該公司決議對公司的運(yùn)行、股東及其他利益相關(guān)者帶來的影響。這樣做,可能會給股東濫訴創(chuàng)造機(jī)會,造成司法資源的浪費(fèi),損害公司、其他股東的利益,破壞經(jīng)濟(jì)的平穩(wěn)運(yùn)行。其他很多國家（地區(qū)）關(guān)于瑕疵公司決議的撤銷有不同的規(guī)定,對于可撤銷的公司決議賦予了法官自由裁量權(quán),當(dāng)公司決議的程序瑕疵程度輕微時,法官可以視情況駁回股東提起的撤銷之訴。本文針對我國立法的缺失,在現(xiàn)有理論的基礎(chǔ)上,采用實(shí)證分析、比較分析的方法,對收集到的樣本案例進(jìn)行數(shù)據(jù)分析,希望為我國的學(xué)理研究、司法實(shí)踐等提供數(shù)據(jù)借鑒,以期對我國公司決議撤銷訴訟中裁量駁回制度的構(gòu)建有所幫助。正文分為四個部分:第一部分對公司決議撤銷訴訟中的裁量駁回制度進(jìn)行概述。介紹了該制度的概念、法律價值和法律效果。第二部分對案例樣本進(jìn)行分析。本文主要采取實(shí)證分析、比較分析的方法,從北大法寶案例庫中搜集案例,將公司決議撤銷訴訟中涉及裁量駁回的案件篩選出來,選取所需變量進(jìn)行數(shù)據(jù)統(tǒng)計(jì),通過統(tǒng)計(jì)案件的時間分布、案件的地區(qū)及審判等情況,分析公司決議撤銷訴訟中裁量駁回制度在我國的實(shí)施情況。通過統(tǒng)計(jì)樣本案例中涉訴被告公司股東的數(shù)量、涉訴公司的決議類型、法院裁量駁回的原因等數(shù)據(jù),以分析出影響我國法院作出裁量駁回判決的因素。第三部分結(jié)合上述數(shù)據(jù)分析了司法實(shí)踐中反映的主要問題。一是裁量駁回的考量因素?cái)U(kuò)大化;二是有輕程序重實(shí)體的傾向。第四部分是關(guān)于公司決議撤銷訴訟中裁量駁回制度的構(gòu)建。首先分析了該制度的理論基礎(chǔ);其次,提出規(guī)范法定駁回;再次,分析我國公司決議撤銷訴訟裁量駁回制度適用范圍的立法選擇;最后提出建立輕微程序瑕疵考量因素的司法技術(shù)支持。通過考量各國（地區(qū)）立法,結(jié)合第二部分中對我國司法實(shí)踐的分析進(jìn)行選擇。為避免我國法院裁量駁回實(shí)踐中重實(shí)體輕程序的情況加重,應(yīng)當(dāng)加快公司決議撤銷訴訟中裁量駁回制度的立法,在今后的《公司法》及其司法解釋中加入該制度,法官應(yīng)充分利用大數(shù)據(jù)支持,最高法應(yīng)當(dāng)多出臺相應(yīng)的案例加以指導(dǎo)。結(jié)論部分是對全文作出總結(jié)和歸納。
[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.
【學(xué)位授予單位】：大連海事大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D922.291.91
本文編號：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.
【學(xué)位授予單位】：大連海事大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2017
【分類號】：D922.291.91
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1 楊金;公司決議撤銷訴訟中裁量駁回制度實(shí)證研究[D];大連海事大學(xué);2017年
，本文編號：2129253
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