About the company self-government and judicial intervention on the critical point and range - Analysis Meiya Bing v. Taizhou Hydraulic Component Factory shareholders convening power case

Keywords: corporate autonomy, judicial intervention; critical point

Summary: The company's autonomous character, is its flexible operation, independent innovation, rejuvenate the driving force. Autonomy of private Law is by no means the establishment and operation of the company's inaction or drift, but to take legal action to adjust their methods reserved for sufficient legal space, the government's macro guide, the court in advance of relief when the company's right to configure the grave inJustice, there can not be autonomous or self-deadlock, resulting in benefits lost, this time, judicial intervention as a complementary mechanism to intervene, remodeling fair , Justice and rights balancing mechanism to restore the function of corporate governance is pArticularly important not only to identify the judges involved in the critical point of Justice, but also to master the methods and intensity of judicial intervention.



Autonomy as an independent company marketing the main character, is the company's operating flexibility, innovation, vitality of the driving force behind it all free enterprise system is the soul and essence, the lack of autonomy or self-government can not necessarily inefficient companies, so China has established modern enterprise system must implement the Law's self-concept, get rid of the chronic rectitude, however, the process of corporate autonomy, the right of self-interest as difficult to reconcile the conflict, under certain circumstances the company will always be a self-deadlock, leading to corporate governance of failure, paralysis and even when the company ran through internal coordination mechanism is not difficult to restore self-government, the public must rely on external power, especially the right of intervention by the judicial authority for mandatory self-correction of the company to recover and continue. judicial intervention in corporate governance should be timely, adequate and appropriate, which requires the judge right and proper for judicial intervention to grasp the critical point and the scope and extent.


First, the company's autonomy and legal regulation

Classical liberal school of economics advocates a free economy, advocated economic laissez-faire, opposed to government intervention in economic activities. Stand fully competitive market model to achieve the Pareto efficient allocation of resources, namely to maximize the efficiency of individual consumer behavior and the most profitable companies behavior through the "invisible hand" to make the allocation of resources to achieve an ideal state: any change to any other person if the situation does not make anyone worse situation changed for the better. this ideal state does not require the government Any intervention or public policy, this is a process of self-regulation and correction. minimum government theory of human equality, freedom, Justice and human rights, sanctity of the highest value, convinced that the main powers of the individual ability, self-control, self-restraint ability to achieve self-realization and fairness, Justice, equality, freedom and welfare of the only way, therefore, the Government and the traffic police to perform the functions of the vigil. Min's government and the management was the least government is the best government. free economy thinking in the field of private Law has focused on the concept of autonomy of private Law is comprehensive in Civil and Commercial Law in the establishment of company law is specific condensation of the legal principles of corporate autonomy, however, in real life, as completely idealized state of competition in the market has never been existed. As the late 1920s and early 1930s, worldwide economic crisis, leading to the end of laissez-faire economic policies. Keynesian state interventionism prevails over economic policy, however, in the early 1970s, Western countries, emerging economic "stagflation ", and the Keynesian caught in bankruptcy. History tells us that the company's absolute self-government and government intervention and comprehensive justice unprincipled intervention will not work.


Company in the Western context, stressed the autonomy of independent shareholders, the shareholders can get rid of self-control and intervention to engage in business activities, and in our social context is focused on separating thinking, emphasizing the company out of improper government intervention, to achieve the company independently, self-financing, self-development, self-discipline and self-improvement company as an independent market entities, must have its own independent will, independent of the interests of independent and independent responsibility of the property, which is the basic sound personality requirements in the market economy, an equal, free and fair trade order for each individual to achieve self-interest and business are the best judge. "A good society must have restrictions on personal choice interfere in other people choose the degree of mechanism, a good society should have a smooth flow of all people broad pArticipation in decisions of private goods and the configuration of the institutional mechanisms of social goods, a good society should do everything possible to eliminate the inherent talent of the privileges and inequalities, The people of the acquired network in the community to become a knot point that the only decisive factor on. "[1] [1] is the only private law and autonomy" to achieve the following idea: that anyone can with its noble enter into contracts, made wills, establishment of a society. "[2] [2] of corporate autonomy is not absolute freedom, but does not allow companies or individuals free to do anything.'s autonomy is the autonomy within the law," where we want to focus on that there is no suitable legal and institutional, have reflected the market will not maximize the value of any sense of 'efficiency'. "[3] [3] Hayek, if there is no economic freedom, there can be progress the Government should not dictate to the company, but should be the creation and implementation of the relevant property, the exchange of law, so that companies or individuals to create wealth in the most beneficial way communication with each other. "legal right of the goal is to live in them individuals to create a private domain, so that they can at will activities. "[4] [4] is an independent market entities, the law must ensure that they can exercise the right to operate independently, according to their own decisions, free to carry out business activities efforts to achieve their business objectives to maximize profits.


Autonomy of private law is not the purpose of the company law or the establishment and operation of laissez-faire inaction, but rather belong to the field of corporate autonomy doctrine is not a statutory adjustment method, [5] [5] to take legal action to adjust the main method for the pArties to set aside sufficient legal space, and no direct government intervention in this area, only indirect measures of macro guide.


Legal adjustments, that is the adjustment of autonomy of private law approach in the legislation on the performance of any of the legal norms, empowering norms, meaning that the presumption of norms. The pArties to act according to their rights and obligations for the creation of their own, the pArties may exclude the means by legal acts presumption rules apply, the parties agreed that better than any of the provisions of the law and only the parties to the absence of meaning or intention is not clear that the only presumption applies to any of the legal norms. the principle of autonomy of private law necessarily means that "recognition of the individual in the field of private law , the rights and obligations of life on their own for the most reasonable 'legislator', without violating the conditions under national law, who obtain based on its meaning, the freedom to create norms to the private law of their legal relationship with others. "[6 ] [6] In particular, the private autonomy of the individual-based Civil relations, the implementation of regular self-regulation mechanism of individual subjects whose characteristics are the basic principles of autonomy, respect for individual liberty, protection of private rights, the main advocate for their Civil the affairs of its meaning according to their own self-call the shots, make the best judgments and choices in the law any more than the performance specifications, and allow Civil subject, by convention, rule out the arbitrary application of rules, which follow the "better than the legal contract "principle. As for the commercial relationship between the places of commercial law in the form of self-regulatory mechanism to implement profit-making, relies on the main commercial intention, behavior and self-restraint, for equality between the pursuit of commercial self-interest to maximize the main needs pointed out Mr. Anthony Francis Neoh , space and social order is the law of two important factors, "there is no order, then society can not develop, there is no space we can not mobilize a nation's enthusiasm a community initiative." Therefore, the law itself must have its frame, has its specifications, making each person know that this road is wide, making each person to go, when to play it for energy, it is considered good law. [7] [7] In addition, under the autonomy of private law "the law provides both for allowing anonymous" implied rule, may be legal for the parties to innovation, create new social and economic relations, set aside the maximum legal space. "Although the interests of our community, but must still the importance of individual interests. "" The government is the best management is also trying to make people very free to create their own happiness. "[8] [8]

China revised in 2005 <<Law>> On the one hand to strengthen the legal doctrine of adjustment method on the other hand, greatly expanded the company's autonomous space, reflecting the company law as private law and the inherent requirements of the Organic Law of property, according to Professor Luo Peixin Statistics , "may", "the articles of association", "in accordance with the provisions of the Articles of Association", "all the shareholders agree, except ... ..." and other arbitrary words in the new <<Law>> CPC appeared 119, the old << Companies>> appeared in only 75 of these arbitrary standards, mainly in the distribution of corporate profits, the internal governance structure, rights of the company's external security configuration scenarios. [9] [9]

Second, judicial intervention: self-supplement company

Corporate autonomy and administrative and judicial intervention is the reality of social and economic life in the eternal theme, start, adjust and standardize the company as the carrier's market behavior in the process of interaction between a trinity of the company to maximize their own interests, side by side decision in the best position as self-interest, independently carry out production and business activities, the freedom to compete in the market activities, the company's behavior and the resulting series of government regulation and economic relations services for the work object, the company running the production of internal and external conflicts, once the lead is difficult to resolve their own disputes, the company and its stakeholders will hopefully invite judicial intervention, interest rate v. fight ended, self-government in danger to save the company. "'s autonomy does not exclude state intervention , the two are essentially complementary. This complementary relationship is by the company to pursue autonomy and state intervention in the different values ​​determined by the company pursuing self-efficiency standards for allocation of resources to promote economic growth, increase social wealth, but such as its push to the extreme, competition may lead to confusion, damage to social equity, on the contrary, state intervention in running the company to pursue the realization of social equity - to solve the company's non-autonomous derivative process fair, non-equal phenomenon, but as to push it to the extreme, it will stifle economic freedom, affect the production of social wealth. "[10] [10] The reason why the government and the courts need to conduct the company's intervention, because of market failures, will externalities caused by corporate activities, monopolistic tendencies, asymmetric information and other harm public interests and the interests of third phenomenon. the subject of corporate governance in the pursuit of individual self-interest to maximize profits and evil human nature's tendency to side, inevitably there will be large shareholders, "internal control" and the case of selfish. "If there is no organization to guard against evil person, to clearly define what is evil rules, individuals can peacefully pursue their own interests, private property rights can not effective protection. "[11] [11]" On citizens know better, better at those things, the state did not pre-empt contrary, it does, even if individuals have some understanding of his own alone force can be those things. "[12] [12] Coase and his followers that" the company is to connect a series of contracts, "including shareholders, directors, managers, employees, creditors, suppliers, customers, etc. between voluntarily entered into express or implied, various short or long term contract, so, in essence, is the conclusion of their participation in a voluntary contract between the structure of corporate law is actually an open, market players choose for the standard contract due to information asymmetry inherent in the company contract "gap", the enormous costs of private contract, judicial intervention can reduce compliance costs, and help compensate for the lack of those who contract the market accurately determine the gap [13] [13] In addition, when the company running process, due to the size of shareholders, between shareholders and managers, managers of the power struggle between each other through internal coordination mechanism is difficult to reconcile, or corporate governance institutions appear unable to overcome the paralysis of governance impasse, the company autonomy high cost to the extent is difficult to attach, and the company's efficiency is almost zero.'s right to configure the grossly unfair, and ultimately translate into benefits lost, this time, you need timely judicial intervention to rebuild equity, justice and rights balancing mechanism, recovery efficiency of corporate governance.


Judicial intervention must respect the principles of corporate autonomy. Respected corporate autonomy is a basic value orientation, in respect of judicial intervention under the premise of self-involvement of the company, but the company autonomy exception of Justice in its request to intervene must be very cautious attitude can not easily intervene in the company of autonomy, which is also common abroad, the practice followed by the judicial practice, even in the case of respect for common law countries are no exception. [14] [14] judicial relief with different administrative intervention, executive intervention has a pro-active characteristics, and judicial relief is a negative, passive and after sex.


Taizhou City in Meiya Bing v. Hydraulic Components Factory shareholders the right to convene the case, the hydraulic component factory in the first session of the Board April 27, 2000, will be elected by the shareholders meeting, according to the provisions of Article 29 of the articles of association, directors of the term of three years, the enterprise should be completed before the end of 2003 the new Board of Directors, Supervisors general election, but the company has not held the directors, supervisors and the general election of the shareholders' meeting as the articles of association of the internal "self-regulatory" failure to implement, Articles by corporate governance can no longer function properly, resulting in the survival of the incumbent board of directors and current directors, supervisors questioned the legitimacy of being shareholders on 2 February 2004 when, Meiya Bing and shareholders Pang Yulun requested in writing of shareholders held Hydraulic Component Factory General Assembly, the general election, but has the right to convene the board turned a deaf ear. At this point, around the new election of directors and supervisors, among the shareholders as the battle for corporate control has been kicked off, the current Board of Directors on whether to continue to control business dispute has led to .2004, Feb. 4, 2005 the shareholders Pangyu Lun, Mei Yabing were the same cause of action to Taixing People's Court filed two lawsuits to require an order deadline of hydraulic components plant general meeting of shareholders, the general election First trial, the court of second instance are to be accepted and make the appropriate decisions and processing, which according to the business meeting of shareholders to elect a new Board of Directors, supervisors and internal affairs, internal settlement mechanism in its failure, judicial intervention is the attitude of complete worthy of recognition.


Third, the company's autonomy and judicial intervention: the critical point and define the scope

(A self-government and private companies to determine the critical point of intervention

Autonomy in dealing with the company's relations with the judicial intervention, all through the market and the company self-government can solve the problem, and companies should be autonomous from the market mechanism to solve, through the market and corporate self-government is difficult to solve, but through standardized, fair trade self-regulatory organizations and intermediary organizations can be resolved, it should be self-resolved only when the market and company self-government, industry self-regulatory organizations and intermediary agencies can not solve the problem, need for judicial relief, the parties ask the court to intervene after the fact. that must be insist on corporate autonomy and self-discipline mechanism to the superior position compared to the principle of judicial mechanisms, however, autonomy from the company to judicial intervention, between the objective there must be a gradual transition period, there is a difference between the two to maintain the critical nature point, assuming the company is running, the private rights and public powers are along the same straight line configuration, one end of this line the other side of the court the company, government regulators are bound to the first position in the court in the corporate autonomy and government control between the company between autonomy and judicial intervention are a critical point, the critical point of judicial intervention in relation to government intervention in the critical point and the distance between the company much further, that the autonomy of the judiciary to give the company much space much larger than the space reserved for the government for the company and the more critical point between the courts near the end of the company shows the company's affairs, judicial intervention is gradually increasing frequency and intensity, on the contrary, gradually approaching the critical point if one end of the court , the court dispute involving a case for corporate affairs at the rate of decline, if the critical point where the endpoints coincide with the court that the court rejected the company's internal affairs on the case of disputes, not judicial intervention.'s autonomy and judicial intervention in the critical point technically impossible to make the legislative positioning, can only rely on proceedings before the judge determined. So, how can we judge between the two according to accurately locate the critical point? argued that the request for judicial relief from the causes of action and point two to be sure. the cause of action is concerned, who meet the following conditions, subject to court cases, should be placed on trial: (1 <<Law>> and its judicial interpretation of a clear right of appeal and its related parties Company Litigation case (2 <<Law>> Although there is no judicial interpretation of the company and related parties of the right to appeal as expressly provided, however, the party's substantive rights protected by law has been violated, and in line with <<Civil Act>> Section 108 provides that the conditions of the prosecuted companies Litigation cases (3 companies autonomy seriously abused, the battle for control of the company led to emergence of governance or corporate governance can not be stalled, if not for the party's claim filing, the court refused to judicial intervention, the company will not be able to restore autonomy, and will result in the interests of the company and related parties continue to suffer losses. the time point, must meet three conditions: first, the dispute has generated and the parties filed a lawsuit in this autonomy should not be involved in the company prior to the field, that adhere to the traditional "non-divisions and forget" principle of adversarial proceedings, and the second, in the proceedings before the internal affairs of the company's dispute has exhausted all internal remedies, for example, on behalf of the shareholders proceedings, many countries will it be exhausted internal remedies - requesting authority to prosecute the company as a shareholder can bring lawsuits on behalf of the pre-procedure, another example, the company set up in the request declared invalid the proceedings, many countries have legislation on the establishment of licensing companies to make corrections defects, which do invalidation because the legislators know that, in accordance with the concept of autonomy, the company's future, their fate decided by the members of the company constitute the third, except in order to safeguard public interests, the court shall not take the initiative in terms of intervention in corporate affairs. [15] [15]

Taizhou City in Meiya Bing v. Hydraulic Components Factory shareholders the right to convene the case, the facts of this case has fully demonstrated the shareholders for corporate control, shareholders will not cause the time schedule according to the articles of association held a meeting for election of directors, shareholders Council is unable to start, February 2, 2004, Meiya Bing and Pang Yulun Although written two shareholders meeting of shareholders to exercise the right to request to require hydraulic components plant general meeting, the general election, but not the internal relief program work, then Pang Yulun December 22, 2004 to initiate judicial relief, a court of second instance are supported by general meeting of shareholders for the election of directors of the request, and after the implementation of the program, but are blocked by the incumbent who failed to achieve control of the company. Meiya Bing general election for the Board of Directors then in February 4th, 2005 filed a lawsuit again request for judicial relief. It can be seen, in this case the company has reached the extreme abuse of autonomy, self-critical point of the company has been exceeded, the court had to be further judicial intervention.


(B scope of judicial intervention

Judicial intervention and the scope of autonomy the company a clear demarcation is difficult because the two are often on the same object in different situations or times, by different subjects using different means to make a firm handle on the company's course for the government and the company will monitor dispute caused by administrative proceedings, this article will not discuss. China's judiciary and judicial intervention is limited to academia had with the company's external legal relations or external affairs of the company, including all the legal relationship between the differences of opinion. justice prevailing view is that the industry has to minimize the court should be involved in the field of corporate governance disputes, disputes should be accepted for the stake, simply should not be involved in the management of disputes, and some even believe that the dispute between shareholders and corporate management behavior, belonging to the company's internal affairs, justice should not interfere and intervene, the court accepted only the external relations of companies involved in legal matters. In this regard, Professor Zhao Xudong to be sharply criticized. "internal relations are also part of the adjustment range of company law, the resulting The controversy also require judicial relief, there is no relationship between private law remedies outside of the relationship within the company. ... In fact, the Law on the litigation, the vast majority just because of the internal legal relations, whether it is asked to confirm the general meeting of shareholders or Board resolution of the complaint is invalid, or the shareholders or directors of the company's compensation of the complaint, are typical of internal relations caused by the litigation. Clearly, the judiciary can not be refused because of an internal affairs hearing. "[16] [16 ] Professor Jiang Daxing is further pointed out: "If you deny the company's internal disputes for judicial relief, then arrange the internal affairs of the rule of law is likely to evolve into a dead letter and therefore can not dissolve the dispute is the company's internal affairs and refused to accept the trial. "[17] [17]

China's 2005 revised <<Law>> explicitly express the relationship between an increase on the company can appeal, including: the company's "social responsibility", the company's activities should be party to provide the necessary conditions for lifting the corporate veil, objections shareholders to determine the share buy-back price, the shareholders of the right to inspect the company deadlock; barriers to the exclusion of shareholders' right to know, shareholders (the General Assembly, the Board of Directors resolution null and void or revoked, shareholder litigation and shareholder derivative litigation directly; May 5, 2008 the Supreme People's Court Judicial Committee of the 1447th meeting, adopted the method release (2008) No. 6, "the Supreme Court on the application of <<Company Law>> number of issues under (b" requires refinement of the dissolution of the company involves the following action:

(1 dissolution of the company shareholders filed the complaint, (2 apply to court to specify the creditors liquidation group, (3 dissolution of the company not established in the legal liquidation of its group, while the creditor has not filed application for liquidation, shareholders have the right to apply to court for liquidation of the specified company into liquidation, (4 members of the creditors claim damages liquidation v.; (5 creditors approved the debt liquidation group object to the defendant asked the company to re-group approved the liquidation of the complaint, (6 supplement to declare the claims of creditors, the company has not yet allocated property can not be paid in full, the creditors claim the remaining shareholders in its distribution of property in the property has been made to settle the complaint, (7 liquidation program execution unidentified losses to the company or creditors of the company, shareholders or creditors, the liquidation group members advocate liability of the complaint, (8 limited liability company's shareholders, Inc. directors and controlling shareholders and actual controllers of the company's creditors, the liquidation of obligations entirely on the company's debts and liabilities of compensation, joint liability of the complaint, (9 without liquidation cancellation of the company's shareholders, directors and actual control of the liability of the complaint, (10 according to the company without liquidation of the cancellation of the shareholders or a third person committed in the cancellation of registration of the company liable for the debts of the complaint; (11 company property is insufficient to debt, creditors, shareholders, investors unpaid claims, and the company set up when the other shareholders or the promoters contribution in unpaid debts and liabilities of the company within the joint liability of the complaint, (12 group members represent the shareholders of the liquidation proceedings.


Fourth, the field of judicial intervention in the way the company and the degree of autonomy

Litigation cases in particular, the company's corporate governance disputes on a case, the court used a different type of case is handled and the extent of judicial intervention, there are big differences between the U.S. court to force the dissolution of the company's request even if full compliance with the statutory conditions, Court also will seek the dissolution of alternative referees as their discretion. At this point, the courts tend to buy shares of compulsory licensing as an alternative to the dissolution of the referee, because whenever the referee dissolution may destroy an otherwise promising companies, but also to innocent employees have serious consequences, regardless of when, if there is any practicable alternative remedies Keziliyong, it should dismiss the dissolution of the company's claim. [18] [18] China's " Supreme People's Court on the application of <<Company Law>> number of issues under (b "Article 5 states:" People's Court proceedings to dissolve the company, should focus on mediation. the parties agree to negotiate the acquisition of shares by the company or shareholders, or to capital reduction, etc. the company continues to exist, and does not violate laws, administrative regulations mandatory, the people's court should be supported. parties can not negotiate a leading company continues to exist, the people's court shall sentence. "which in the absorption of the United States Court of reasonable approach, based on the judicial flexibility and elasticity of our country's <<Law>> Article 183 is too rigid to the provisions of the ease of make up, to better reflect the commercial law to maintain the principle of adhering to the enterprise.


Court in the internal affairs disputes procedure should be adhered to relief-oriented and supported by the principle of substantive rights decisions based on company law, private law character, the court dealing with company law disputes, mostly procedural intervention, only "internal relief with do ", the court can start the relationship of physical intervention company law in the shareholders on the dividend distribution will not make resolutions, the shareholders request the company is meeting the demands of the shareholders should decide the allocation of profits, but can not ask the court to profit distribution decision to replace the company's shareholders will make the profit distribution plan. In this regard, the Court's judicial activities, should be a procedural oversight, the court may order the company's allocation of the resolution of the shareholders meeting, but not in normal circumstances the court should as active as a businessman to help companies to consider what is in their best commercial interests, and given a free hand to help the company exhausted all the retained earnings distribution. [19] [19] "The Court's task is to inform or help the parties start internal relief program, rather than direct assistance rights and obligations of the parties to arrange the court only in exceptional circumstances within the company was directly involved in the rights and obligations of the arrangements - the physical interventions, such exceptions usually refers to - failure of internal self-government, corporate actions serious damage to the fair. "[20] [20] For example, if the company lazy meeting of shareholders, the court's task is to order the company to convene meeting of shareholders, rather than directly helping the company decided to shareholders is seeking to discuss the matter.


Commercial Court judge to intervene in cases involving the company, you can not make a commercial alternative to the parties to determine, for example, draws on the dissenting shareholder acquired its shares in the pricing, whether the breach of duty of the directors liable in the business to determine the problem. Bo Lee and Means asserted that "in essence, the management company, the court is not good, so the reluctance of the courts, did not dare to intervene in affairs in the company's business operations" [21] [21] Therefore, "stressed the Business Judgement Rule judge must not replace the company's business affairs manager for the evaluation of judges to decide what legal basis is still the director of the company's loyal and the diligence obligations "[22] [22] In this regard, in the U.S. case law, the judge to determine whether a director is to create to the duty to make the rules and conditions, in accordance with procedures followed by review of the conduct of directors meets these rules and conditions, use of the principle of burden of proof, the burden of proof assigned to the director, director of self-certification to do so to a reasonable duty of care 'as it can not that is presumed to have its breach of duty of care, and the Company's liability. As a result, the judge subtly complex, they are not good business to determine the conversion of a judicial review process, thus avoiding their own alternative to commercial traders judgments.

Links to free download http://www.hi138.com self-regulate the priority principle. In accordance with the company as the main principle of autonomy of private law, the law allows it to stand on the position of legislators, for their own set of rights and obligations of the parties convention over the law, home rule prevail in the law allows actors to opt-out mandatory standards apply, provided by the articles of association to other matters, or legal norms does not expressly provide, then they are letting the perpetrator of the law autonomy of the territory.


February 4, 2005, to shareholders Meiya Bing hydraulic components plant over the period stipulated in the constitution has not held the shareholders will be the new board of directors, the general election on the grounds, filed a lawsuit seeking an order deadline of hydraulic components, factory shareholders' meeting , the Board of Directors of the general election of Board of Directors, Supervisors and chairman of First Instance, that the court of second instance, the hydraulic component factory is joint-stock cooperative enterprises, and its articles of association according to specifications established by the enterprise and its internal institutions and shareholders rights and obligations, the enterprise was established basis for the functioning of the enterprise, the board of directors and all shareholders are legally binding. Mei Yabing 13.6% stake as the shareholders entitled under the articles of association to require the meeting of shareholders, the new directors, supervisors in the general election's claim should be supported because the Hydraulic Component Factory corporate charter Article 29, Term of Office three years, the term can be re-election, re-elected. The plant could not be conducted against the constitution has a general election, resulting in the current term of office of four directors are over the legal limit. Two reasons for the trial court's decision and fully comply with the spirit of autonomy of private law.


Another issue is whether the case be elected new Chairman of the problem. Court of second instance that under the Hydraulic Component Factory company with Article 29, paragraph 3 of that article, the chairman elected by the Board, rather than elected by the shareholders, so appellant Meiya Bing requirements based on shareholder elections, chairman of the board of directors held a lack of legal basis, although the appellant is still the director of plant hydraulic components, but argued that the new session of the Board elect a new chairman is not possible within the current Board elections, the new board of directors must be elected before it can be. Therefore, only when the appellant Meiya Bing after a new board member, was entitled to refer to its <<Company Law>> and the relevant law to convene the new board of directors the right to elect a new chairman in the case , due on the directors, supervisors and the shareholders of the general election will not hold, the appellant Meiya Bing required to elect a new term of the new chairman of the board of directors prerequisite has not been achieved, so that its appeal, the Court will not support. court of second instance of the chairman of the general rules and procedures have made reasonable interpretation of the law can not be said to support the evidence are, however, the appellant's second point on appeal and the reasons for analysis, second-instance court on the request of the reasoning with the "King of outright 'suspected the appellant's intention is convened at the request of shareholders, the directors general election, while the direct election of chairman of the production, rather than by the convening of the newly elected board members elected the new Board of Directors Meeting produce chairman based on the existing <<Law>> Article 45 provides for limited liability company: "chairman, vice chairman of the election are prescribed by the articles of association." This is empowerment of any specification. The Hydraulic Component Factory company with Article 29, paragraph 3, "chairman of the board elected by the Board." In this regard, the appellant's request does not meet the Hydraulic Component Factory company articles of association. In accordance with the principle of autonomy of private law, the court should respect the company by the power of home rule arrangement, the right to change the company the right to legal arrangements to ensure that the principle of self-government rules or contract-first. Accordingly, the same can not support the appellants requested the convening of shareholders will be elected chairman of the claim.


The extent of judicial intervention must be appropriate, otherwise, or will not help to resolve disputes of corporate governance process, but to spend the cost of litigation, a waste of judicial resources, or not only failed to restore corporate governance mechanisms, but to make the company a serious impasse and further deterioration. For the plaintiff Meiya Bing appeal request. Taizhou City Court after hearing that the case for the parties meeting of shareholders, the directors, supervisors did not contest the general election, the two sides in dispute is whether shareholders should be the directors and supervisors of general The only agenda for the meeting of the election. on the agenda of the shareholders' meeting nature of the arrangement, it should belong to the enterprise's internal affairs, the court should not interfere, but if the abuse of corporate shareholders the right to arrange the agenda, a shareholder can not achieve its exercise the right of shareholders to convene a legitimate purpose, in this case, the shareholders meeting of shareholders to demand a particular agenda of the request should be supported in the case has been concluded as an incentive to start, and the other shareholders Pang Yulun request to convene the shareholders Hydraulic Components Factory dispute case, the mediation of the implementation process, given the resolution of the shareholders has been abuse of the right of the plot Arranging [23] [23], according to the appellant requesting court of second instance, the resolution of the shareholders made arrangements for the matter, the verdict was appealed Hydraulic Components Factory were the first instance civil judgments by first meeting of shareholders, such as there are other agendas, should the directors, supervisors and the general election as the first agenda of the shareholders. the decision respecting the autonomy of enterprises, while with the restrictive factory to ensure the completion of the hydraulic components of Board of Directors, supervisors in the general election to enable them to self-rule according to the normal operation of it to shareholders' request to convene the shareholders Pang Yulun case of dispute mediation of the formation of Hydraulic Component Factory meeting of shareholders to elect a new Board of Directors of judicial intervention significantly increased the intensity, but also more feasible, for the smooth implementation of decisions and to restore Hydraulic Component Factory shareholders laid the foundation for the function.


However, the review in another case before the request to convene the shareholders' meeting of shareholders Pang Yulun case of disputes, mediation despite enforced, but the end result of improper judicial intervention, is not enough, resulting in mediation with only an empty text only, we are can get a lesson that the judge's judicial intervention in addition to identify critical points in a timely manner to intervene the internal affairs of the company disputes, more importantly, master the methods and intensity of judicial intervention.


As the manner and extent of judicial intervention has left a deep lesson of defects typical cases, the dispute comes as Hongzhikeji case of double-headed general meeting of shareholders. [24] [24] When the ST Hongzhi due to large shareholders on corporate control of the fight for the formation of two sets of the board body, "Double Eagle", after the embarrassing situation, Wang Dong-sponsored by the Extraordinary General Meeting of the Board of Directors selected forcibly take over the company, but two board groups did not break the stalemate March 17, .2004,王栋向福州中院起诉ST宏智,请求判令被告立即结束法人治理的混乱状态,正常开展生产经营活动,停止对原告作为被告股东合法权益的侵害,确认其提议召开的临时股东大会决议的效力.福州中院于2004年4月作出民事判决,判决书认定2004年1月11日由王栋、黄曼民分别主持召开的ST宏智2004年第一次临时股东大会程序不合法,所产生的决议均无效,并驳回原告王栋的其他诉讼请求.王栋与被告均提出上诉.2004年6月21日,福建省高院终审判决驳回上诉,维持原判.在案件审理期间,福州市中院应ST宏智先予执行申请,裁定2004年1月11日产生的董事会、监事会停止对ST宏智的管理.


诉讼期间,福州中院裁定公司的公告暂由两个董事会同时发布.后来的公司年度报告、重大诉讼等重要信息,均由两个董事会同时发布公告予以披露.这一司裁量不但无助于结束公司内部治理的混乱状态,反而使这种混乱局面获得了法院支持.两级法院的判决,在表面上,对争议双方各打五十大板,但实际上明显有利于原董事会.由于新选出的董事会被裁定退出公司,将公司的管理权移交给原董事会,为原董事会"疯狂变卖公司资产"创造了条件.因此,法院判决非但没有收到定纷止争的效果,反而对起诉股东更加不利,直到黄曼民被警方拘捕为止. [25] [25]

再回到液压元件厂股东请求股东大会召集权一案,值得检讨的是两名股东庞玉伦、梅亚兵分别于2004年、2005年2月4日,先后就一同事由提起两起诉讼案件,并且每个案件都经过了相同的两级法院审理.第一起案件二审法院调解结案,调解书虽经原告庞玉伦申请强制执行,但是,调解书所规定的召开股东会选举新一届董事的事项未能完成.于是又引发第二起同样的诉讼,又是原有的两级法院经过了同样的诉讼程序,后一案件除了要求将董事换届选举作为首要议题和所采用的结案形式不同之外,二审法院判决的主旨与前一起案件调解书的内容并没有实质的区别.这不但无为地耗费了司法资源,而且使这一案件不无疑问:其一,第一个案件的调解书强制执行未果,又未终结执行程序,是否仍具有法律效力?其二,第一个案件的调解书对其他股东是否具有约束力?其三,前后两个案件虽然原告不同,但被告与诉讼事由完全相同,是否与"一事不再理"原则相冲突,其四,两个处理结论几乎完全相同的法律文书在效力方面是一种什么关系?这些问题均有待于法律界的同仁继续探讨.




Notes:
[1] 杨冠琼著:<<政府治理体系创新>>,经济管理出版社2000版,第205页..

[2] 郑玉波著:<<民法债编论文选辑>>,五南图书出版公司1984版,第73页.

[3] [美]布坎南著:<<自由市场和国家>>,吴良健、桑伍等译,北京经济学院出版社1989年版,第89页.

[4] (英阿兰·艾伯斯坦:<<哈耶克传—市场经济和法治社会的坚强捍卫者>>,中国社会科学出版社2003版,第231页.

[5] 法定主义调整方式要求当事人的行为必须符合法律概括的典型形态,否则,就属于违法行为,必须承担相应的法律后果.法定主义调整在立法上表现为强制性、禁止性法律规范.

[6] 刘宗荣:<<定型化契约论文专辑>>,三民书局1989版,第45页.

[7] 梁定邦:<<公司治理与律师>>,<<中国律师>>2001年第1期,第22-23页..

[8] [美]罗斯科·庞德著:<<普通法的精神>>,法律出版社2001,第77页.

[9] 新<<公司法>>一方面力促公司自治,另一方面则大大强化了公司的责任机制,在公司设立登记、控股股东和高管人员的责任承担、公司人格滥用之避免、公司社会责任之承担、公司工会的组织建设等方面,设定了大量的强制性条款.据罗培新教授统计,"应当"、"不得"、"必须"等强制性字眼,在新<<公司法>>中总共出现271处,旧<<公司法>>中此类字眼出现了243处.参见罗培新:<<公司法强制性与任意性边界之厘定:一个法理分析框架>>,<<中国法学>>2007年第4期,第69页.

[10] 蒋大兴:<<公司裁判解散的问题和思路——从公司自治与司法干预的关系展开>>,载王保树主编:<<全球竞争体制下的公司法改革>>,社会科学文献出版社2003年版,第397页.

[11] Adwin Cannan, Elementary Political Economy (London :Routledge-Thoemmes,1997),P119.

[12] 李斯特著:<<政治经济学的国民体系>>,商务印书馆1961年版,第169-170页.

[13] 贺少锋:"公司自治·国家强制·司法裁判",载http://www.chinalawedu.com/news/2005%5C6%5Cli5016273741416500211248.html,2008年7月12日访问.

[14] 宋尚华:"司法介入公司自治的原则",载http://hi.baidu.com/xhhwk/blog/item/1fec88ec21ab392262d09f95.html,2008年7月12日访问.

[15] 韩国法律允许基于公益性理由,在符合法律所规定的情形时,法院可依职权发布解散公司的命令.

[16] 赵旭东:"公司僵局的司法救济",载<<人民法院报>>2002年2月8日,第3版.

[17] 蒋大兴:"公司裁判解散的问题和思路——从公司自治与司法干预的关系展开",载王保树主编:<<全球竞争体制下的公司法改革>>,社会科学文献出版社2003年版,第400页.

[18] [英]A． J.博伊尔著<<少数派股东救济措施>>,段威等译,北京大学出版社2006年版,第116页.

[19] 蒋大兴、 金剑锋:"论公司法的私法品格——检视司法的立场",<<南京大学学报>>(哲学、人文科学、社会科学2005年第1期,第43页.

[20] 上引文章,第44页.

[21] Adolf A. Berle & Gardiner C. Means, "The Modern Corporation and Private Property", 1933, p. 336.

[22] 甘培忠著:<<公司控制权的正当行使>>,法律出版社2006年版,第220页.

[23] 液压元件厂于2005年1月16日召开股东大会,梅亚兵以股东及庞玉伦的委托代理人的身份参加会议,在会议举行第二项议程时,由监事会向董事会提交停止庞玉伦行使股东表决权利及参与经营权利和关于处理庞玉伦经济问题的提议时,梅亚兵以庞玉伦的股东资格已由法院判决书作了确认,监事会的提议违法为由退出会场,股东大会亦未能继续进行.

[24] ST宏智控制权纠纷的起因是以王栋、林起泰为代表的ST宏智创始人与增资扩股后引入的股东对于公司运作方式的分歧.2003年11月19日王栋请求公司董事会召集临时股东会议改选董事监事被拒绝.同年12月11日,王栋发布公告,定于2004年11日自行召集并主持2004年公司第一次临时股东大会,审议关于更换ST宏智现任董事、监事的议案.ST宏智也于同日发布公告,称对此次临时股东大会的有效性不予认可.但2004年1月10日突然又公告决定出席并由董事长主持股东会议.

第二天上午8:30,王栋召集的ST宏智2004年临时股东大会在福州美伦华美达酒店四楼召开.纷争双方均出现在会场.公司董事长黄曼民到会要求王栋交出股东报名登记资料并由其本人主持会议,遭到拒绝后,遂宣布会议地点改到三楼会议室,并将会议开始时间推迟到10点.于是,在上下楼层两个会场里,两场股东大会上就同一个议案,审议出截然相反的两个结果.第一场由王栋主持的股东大会与会股东50余人,拥有表决权股2464万股,占ST宏智总股本的22.40%,会议以99.80%的赞成票审议通过了王栋提交的<<关于改选公司董监事的议案>>,形成以姚雄杰为董事长的董事会,第二场股东大会与会股东有第二大股东李少林、第三大股东大乾数字、第四大股东闽发物业、第七大股东石狮融盛及一名持有0.26万股的股东5人,拥有表决权股4071.46万股,占ST宏智总股本的37.01% .会议以接近100%的反对票否决了王的上述议案.双方均聘请有证券从业资格的律师出席股东大会.ST宏智由此形成了两套董事会班子"双头鹰"的尴尬局面,后由王栋主持的临时股东大会所选的董事会强行接管公司.2004年3月17日,王栋向福州中院起诉ST宏智,请求判令被告立即结束法人治理的混乱状态,正常开展生产经营活动,停止对原告作为被告股东合法权益的侵害,确认其提议召开的临时股东大会决议的效力.

[25] 吴建斌:<<股东大会主持权纠纷——宏智科技双头股东大会纠纷>>,载吴建斌、郭富青主编:<<商法学案例教程>>,知识产权出版社2007年版,第192页.转贴于 免费论文下载中心 http://www.hi138.com