论我国决议行为意思的产生

On Generation of Intention of Resolution Act in China

理论界和实务界对决议行为存在不少争议。应在意思自治原则的基础上以意思表示为中心探讨决议行为。决议意思表示主体应限定为法人、非法人组织。应按意思构成与指向等因素分别认定决议行为的性质。决议行为的意思表示主体不是团体成员而是团体本身。决议行为不当然构成法律行为。团体实施单方行为这类仅需单一决议意思就能成立的行为时,决议属法律行为;决议系团体参与的需双方、多方意思表示一致才能成立的法律行为的一部分时,决议不是法律行为而只是该行为中的意思或意思表示。因此,决议构成团体意思的产生方式,但其表示可能通过决议完成,也可能通过法定代表、职务代理等制度另行完成。

There is a lot of controversy about the resolution act in theories and practices. The resolution act should be discussed centering on the declaration of intention on the basis of the Principle of Autonomy of Intention.The resolution means that the subject should be limited to legal persons and unincorporated organizations. The nature of resolution act should be determined separately according to factors such as intentional composition and direction. Resolution act means that the subject is not a group member but the group itself. It does constitute legal action absolutely. The resolution is a legal act when a group implements an unilateral act such as an act that can be established only with the meaning of a single resolution;The resolution is not a legal act but only the intention or declaration of intention of that act when it is part of a legal act which demands of mutual assent by both parties or multiple parties that the group participates in. Therefore, the resolution constitutes the way of generating group intention, but its declaration may be completed through a resolution, or may be completed separately through systems such as legal representatives and job agency.