股东大会决议瑕疵的救济

The Remedy for the Defective Resolution of the General Meeting of Shareholders

股东大会决议瑕疵存在于程序和内容两个方面,瑕疵股东大会决议的效力分为决议不存在、决议可撤销和决议无效三种情形。瑕疵决议可以寻求全体股东的一致同意、决议的撤回和追认等多种方式得到补救。但对瑕疵决议的效力,只能以诉的方式主张;对瑕疵决议的裁判方式和效力有特殊性,应防止撤销之诉的滥用。我国《公司法》第111条缺失瑕疵股东大会决议的效力评价体系,应予改革和完善。

Defective resolutions of the General Meeting of Shareholders(hereinafter referred as Gms) are due to either the procedure of the GMs or the contents of the resolution. Defective resolutions include the nonexistent resolution, revocable resolution and null and void resolution, whose remedies include an agreement of all the shareholders, withdrawal or subsequent endorsement of the resolution. As to the validity of a defective resolution, we can only resort to litigation. Since the method to adjudicate a defective resolution and the validity of the judgment are of a special nature, we should take care to avoid abuse of reversal decisions. Since there is no provision related to the defective resolution of the general meetings in Article 111 of the Companies Act of the PRC, one should be added.