公司决议撤销权主体范围的规范重构

The Normative Reconstruction of the Scope of the Subject of the Corporate Resolution Cancellation Right

《中华人民共和国公司法》第22条的规范对象是因程序瑕疵而致决议可撤销的情形,其中撤销权主体范围之规定存有不足,亟须完善。公司决议撤销权作为救济权属于第二性权利,其原权为表决权,处于公司瑕疵决议救济体系的最后顺位,其制度功能以实现私人利益为目标。在此法理基础上,结合公司权力架构、诚信原则、公司稳定、商事效率等考量因素,在立法上不宜将董事、监事、无表决权股东、赞成票股东、放弃表决权股东纳入撤销权主体范围;抗议程序瑕疵而未参会股东、继受取得且前手有撤销权股东、反对票股东等则属于撤销权主体范围。在诉讼过程中,原告股权转让后撤销权消灭,此时应中止诉讼,按照继受股东意愿选择是否变更原告并继续诉讼。

The normative object of Article 22 of the Company Law of the People's Republic of China is the situation that the resolution can be revoked due to procedural defects,among which the provisions on the scope of the subject of the revocation right are insufficient and need to be perfected again.As a remedy right,the right to revoke corporate resolution belongs to secondary rights,and its original right should be the right to vote.It is in the last position in the remedy system of corporate resolution on defects,and its institutional function should be aimed at realizing private interests.On the basis of this jurisprudence,considering the corporate power structure,integrity principle,corporate stability,commercial efficiency and other considerations,it is not appropriate to include directors,supervisors,non-voting shareholders,affirmative shareholders and shareholders who give up voting rights into the scope of subject of revocation right in legislation.Shareholders who do not attend the meeting to protest the procedural defects,shareholders who are acquired later and have the cancellation right before,and shareholders who oppose the decision belong to the scope of the subject of the cancellation right.In the course of litigation,if the cancellation right of the plaintiff is eliminated after the transfer of the plaintiff's equity,the lawsuit shall be suspended and the successor shareholder shall choose whether to change the plaintiff and continue the litigation according to the will of the successor shareholder.