公司决议瑕疵立法的范式转换与体系重构

现行法套用民事法律行为范式,以瑕疵决议一律自始无效确保原告救济,以信赖保护维护公司安定,最终却导致原告救济与公司安定及效率的割裂与冲突。这一冲突的根源在于,以瑕疵决议一律自始无效所提供的原告救济本身缺乏正当性、针对性和可行性。应当按比例原则的要求,以瑕疵严重程度区分安排法律后果,从瑕疵决议效力这一源头上重建组织法范式下原告个体与公司整体利益的平衡。仅在瑕疵特别严重时,才应自始否定决议效力,从而禁止其实施或在实施后恢复原状,否则只应适用决议面向将来无效、损害赔偿等柔性法律后果,公司由此可在更大范围内获得决议实施效率及安定。以此为基础,应取消现行“三分法”的诉讼类型划分,而代之以统一的决议瑕疵诉讼及诉讼期限。公司变更决议仅在排除特别严重瑕疵后方可实施并获得存续效力。

Paradigm Shift and Institutional Reconstruction of the Legislationon Defective Corporate Resolutions

The current Chinese Company law applies the civil law paradigm of juristic acts to invalidate all defective resolutions from the beginning to ensure the plaintiffs’remedies and maintain corporate stability by reliance protection.However,this approach leads to the separation and conflicts between the plaintiff’s remedies and corporate stability and efficiency.This results from the fact that invalidity of the defective resolutions from the beginning as a plaintiff’s remedies is lack of justification,pertinence and feasibility.According to the principle of proportionality,the arrangements for legal consequences should be distinguished on the basis of the severity of the defects.Only through the reconstruction of the validity of defective resolutions,the balance between the individual plaintiff and the company’s overall interest can be reached.Only resolutions with extremely serious defects can be denied of their validity from the beginning,and thereby forbidding their implementation or granting restitution after the implementation.Otherwise,resolutions should incur more soft legal consequences,such as being rendered invalid in the future or paying damages.By this way,corporations can obtain greater efficiency and stability.Based on the above,the current trichotomous litigation classifications should be abolished and replaced with a uniform litigation of defective resolutions and litigation period.Resolutions on corporate organizational changes can be implemented and maintain their validity after the implementation only if there is no lawsuit filed within the litigation period or the court has ruled out serious deficiencies after any lawsuit is filed.