股东会决议瑕疵诉讼适格被告二元论

On Dualism of Qualified Defendant in the Action of Defective Resolution of the Shareholders’Meeting

公司为股东会决议瑕疵诉讼的适格被告为我国通说,目前就适格被告认定之依据、判决效力扩张之前提、利害关系主体程序救济等问题,尚无进一步研究。为合理衡平纠纷的一次性解决和程序保障,适格被告不应仅局限于公司。从股东会决议事项涉及利益类型观之,利害关系主体分为一般股东、内部特定人员和外部特定人员。在适格被告的认定上,应采公司和内部特定人员均为适格被告的“二元论”,外部特定人员则为无独立请求权第三人,三者均应给予充分的程序保障。内部特定人员为适格被告时,应尊重其程序处分权,无须强制其应诉,如应诉则须与公司作为共同被告。利害关系主体非因自身原因而未参与诉讼时,有权提起第三人撤销之诉以资救济。

The company is the only qualified defendant in the lawsuit against the defects of the resolution of the shareholders’meeting,which is affirmed by China’s legislation,practice and theory.However,there is no further research on the basis of the qualified defendant,premise of the expansion of judgment effect,procedural relief of interested parties and so on.For the reasonable equity of one-time settlement of disputes and procedural guarantee,the qualified defendant should not be limited to the company.From the perspective of the types of interests involved in the matters decided by the shareholders’meeting,the interested parties include general shareholders,internal specific personnel and external specific personnel.In the determination of qualified defendants,both the general shareholders and internal specific personnel should be qualified as defendants,and the external specific personnel are the third party without independent claim right,all of which should be given sufficient procedural guarantee.When a specific internal person is a qualified defendant,his procedural disposal right shall be respected and he need not be forced to respond.If he responds,he shall be a co-defendant with the company.If the interested party does not participate in the litigation for its own reasons,it has the right to file a third party cancellation action for relief.