论股东会会议的形式化：The formalization of the shareholders' meeting

在欧美，经常出现的情况是，股东们常常是在获得董事长就提问进行解释说明的情况下才参加表决。如果有证据表明，董事长等相关责任人的解释说明也不甚明了，或者其解释说明只是重复工作报告而没有差别，对股东们的提问敷衍了事，或者听其解释说明后一头雾水或更加糊涂了，等等，出席会议的股东们就能够被以误导投票为由，诉请撤销股东大会决议。 
In Europe , the situation often is that shareholders are often carried out in the questions posed by the chairman to get an explanation of the case before voting. If there is evidence that the chairman and other responsible people are unclear explanation or their explanation only duplicate the work report no difference to shareholders ' questions perfunctory , or listen to his explanation after a loss or more confused, and so on , shareholders attending the meeting can be a misleading poll grounds, petitioned the revocation resolution of the shareholders meeting.

股东在股东大会上行使权力受到限制或干扰。如股东因没有登记而被拒绝出席股东大会，或因没有登记发言而被拒绝等等，都是股东行使权力受到限制或干扰的表现，海外的经验是可诉请法院颁发停止股东大会继续进行的禁令，或者由其挂牌的证券交易所决定是否让其股票停牌.

Exercise the powers of the shareholders in general meeting, subject to restrictions or interference. If a shareholder is rejected for failure to register to attend the shareholders' meeting , or because there is no registration statement has been refused , etc., are all shareholders to exercise the powers restricted or interfered with the performance of overseas experience is petitioned the court to stop the general meeting issued proceed ban , or listed on a stock exchange by the decision whether to let the stock suspension ( such as northwest China listed on the Stock exchange of Hong Kong a certain company , on account of failure to register in advance to attend the meeting to prevent a shareholder attending the meeting and the joint is Hong Kong Stock suspension, Stock Exchange of Hong Kong listed companies considered acts of prejudice shareholders exercise their powers too ) .

按照公司法的规定，股东（大）会拥有对公司重大事项的决定权，处于公司最高权力机构的地位，但在实践中，股东会的这些职权并没有被真正行使，股东通过董事会间接对公司的重大事务作出了决策，股东会的职权在公司实务中逐渐被弱化。

Accordance with the provisions of the Companies Act , the shareholders ( large ) will have on major matters of the Company 's decision , in the position of highest authority , but in practice, the shareholders of these powers were not really exercised, shareholders indirectly by the Board of Directors the company made ​​a major affairs decisions in terms of the shareholders in the company practice gradually weakened .#p#分页标题#e#

II.Main theory 正文

Article 40 of the Act "represents more than one-tenth of the voting rights , more than one-third of the directors and supervisors , board of supervisors or the supervisor of the company's proposal to convene extraordinary meetings shall convene an extraordinary meeting ." This is held conditions of a limited liability company procedures Extraordinary General Council made ​​provisions entitling the proposed three categories subject. However, the proposal from the implementation point of view, in which the right of the three proposals , the proposed maximum number of directors , but directors will propose to convene an extraordinary proposal , the Board is not often in the form of an operating policy decisions of the proposal , the initiative the content submitted to the shareholders will vote ; normally , when a decision made ​​by the Board in implemented with external organizations related companies need to form a shareholders' meeting demand , for which shareholders exercise of authority with the Board . In the author 's company situation : Up to the shareholders' meeting the needs of industry and commerce administration departments , as companies often need to go through all kinds of industrial and commercial registration , including the right to amend the articles of association is under the purview of the shareholders , but the record in the Articles of Association change the decision of company registration , business scope , duration of operation of a shareholders can change basic information such matters , in reality, are determined by the Board , the relevant shareholders' meeting , often after making changes to the decision of the Board , as for the registration of the relevant materials and production, not designed in accordance with the legislation , after the shareholders' meeting to make decisions on such matters require the Board to perform .

 

Again , with regard to decision-making power to change the course belongs to equity shareholders of the Company will , but in reality , for asset valuation and property transactions work options must be changed by the Board is responsible for , thus , choose accountant assessment of the company's assets firms, asset management companies choose handle property transactions , which originally belonged to the decision of the shareholders will be transferred to the Board , the same , the relevant resolutions of the shareholders , but also as an asset appraisal report issued by the premise of materials for property transactions application materials and production, there is a big difference between legal design intent .

 

Shareholder proposals submitted for consideration of the Board would basically agree , it is difficult to find examples of veto . From a practical point of view, shareholders will vote on the motion submitted by the Board rates are usually not rejected even by the Executive Board proposal for a temporary operating decisions , the need to add the shareholders' meeting , the shareholders will also vote on rates quite high .#p#分页标题#e#

 

The general meeting of the shareholders, the company's authority to exercise control over the company . By the general meeting of shareholders to exercise control over the company , mainly in two aspects: First, elect and replace directors . The appointment and removal of directors is a manifestation of the basic features of the system of corporate governance arrangements , the rights belong to whom, who will in fact become the company's controller. Second, decide on important issues , namely the decision to share the company's business policy and financing plans ; consider the report approved by the Board and the Supervisory Board ; company's annual financial budget , decision-making solutions , companies benefit distribution and recovery of losses ; increasing the company to reduce its registered capital , issuance of corporate bonds , merger, division , dissolution and liquidation of the resolution ; amending the bylaws . And shareholders' meeting is set Corporation will set up a very authority . According to the provisions of Section 102 of the Companies Act , agencies must establish a general meeting of the Corporation . It is meant as the highest organ Limited 's decision , in accordance with terms of the Act, in respect of the company's operations on major issues to make resolutions. General meeting of all shareholders .

 

Corporation 's shareholders , namely holders Corporation shares , mainly from the following people : one promoter Co., Ltd. , to subscribe for shares in accordance with the law, after its establishment, become shareholders of the company ; Second, the establishment of the company subscribers in the process , because of its subscribed shares, after the company was founded as a shareholder of the company ; Third, the company issued new shares of subscribers , because of its subscribed shares in the new company occurred after the end of the IPO process become a shareholder. To safeguard the interests of all shareholders , to prevent dictatorial and arbitrary large shareholders, the Act recognized the company for the shareholders rights and obligations should be given equal treatment , namely the principle of shareholder equality . In other words , the company does not discriminate against any one shareholder , and to ensure that the shares owned by the shareholders according to their similar proportion equal enjoyment of rights and obligations. In reality, the company's shareholders 'meeting , in particular, a limited liability company , whether it is a regular meeting , or ad hoc meetings are just one form , but not really as a form of organization and decision-making of the shareholders' meeting .

 

"Company Law" will bring together the program , resolution of the general meeting and other relevant resolutions of the procedures to be used as an important part of its detailed provisions aimed at preventing improper procedures caused undue harm to the interests of shareholders. In other words , the general meeting of the company must comply with the relevant provisions of the legislation , resolutions passed by the general meeting , its content must not violate the relevant laws , regulations and the Articles of Association . Especially in the case of stock ownership and control of the separate companies , company has more than fake directors, managers hand, directors, managers and other powerful management authority , while shareholders are not directly involved in the company , so that the shareholders' meeting by management often manipulation.#p#分页标题#e#

 

In real life , often some non-standard cases, for example , did not actually open the shareholders 'meeting , just pretend for the shareholders' meeting opened on paper ; according to relevant regulations, the vote for each share has one vote , but some shareholders' meeting , although representatives attended the meeting has one vote , but really represent the number of shares , no statistics. After the voting , the Board did not specify the number of participants in the meeting , representatives of the number of shares , under the favor of the number of votes cast against other digital case , it announced the adoption of all resolutions . Thus, due to the presence of a variety of reasons , the resolutions of the shareholders may be in violation of procedure , or may be defective , or is contrary to the laws, regulations or the Articles of Association on the content. These cases do not meet the laws, regulations or the Articles of Association , will be on the company, its shareholders resulting in some degree of adverse consequences .

 

Binding effect of General Assembly resolutions and the requirements of their program content must comply with the law or the Articles of Association , otherwise the resolution can be revoked by the presence of defects , change or confirm invalid. General Assembly resolutions due to procedural flaws or content in violation of the law or the Articles of Association to produce . Defect formation process is the resolution of the shareholders' meeting after the program flawed. "Company Law" will bring together the program , resolution of the general meeting and other relevant resolutions of the procedures to be used as an important part of its detailed provisions aimed at preventing improper procedures caused undue harm to the interests of shareholders. Due process rights of the shareholders can promote the practical enjoyment , the company has been effectively fulfill obligations . Lead to resolution of the meeting defective forms are:

III.conclusion结论
 

Moderator No Token or violation of the rules of procedure. As previously described Hongzhikeji AG chairman " can not enter the general meeting chaired by Wang Dong " and presided over another EGM, thus a " double " the general meeting . Moderator violation of the rules of procedure so that the general meeting can not proceed through onsite meeting a majority of voting shareholders agree , the general meeting may elect one person as chairman of the meeting , the meeting continued .

 

Violation of the resolution requirements . The resolution of the meeting , such as the formation of majority rule violation . Article 24 of China's " Company Law" , the general meeting shall be adopted by the shareholders present at the meeting held by a majority of the voting rights . However, the shareholders' meeting to amend the articles of association , increase or decrease the resolution of the registered capital , merger , division, dissolution or change of corporate form, the resolution must be approved by two-thirds or more of the voting rights held by shareholders attending the session.#p#分页标题#e#

 

Of the voting rights of the shareholders exercise their voting rights restricted . China's " Company Law" Article 104 stipulates that the shares of the Company held no voting rights ; article 16 of the company to provide security to a shareholder or actual controller must be a resolution of the shareholders 'meeting or shareholders' meeting . Shareholder or actual controller shareholder dominated by the preceding paragraph of the preceding paragraph , the provisions of the preceding paragraph shall not participate in voting on the matter . The vote by the other shareholders attending the meeting by a majority of the voting rights .

 

Resolutions of the violation of the law or the provisions of the Articles of Association . According to China's "Company Law" , the Corporation shareholders' meeting to decide on the company's operating policies and investment plans ; elect and replace directors and decide on matters relating to directors ; against the merger, division and dissolution and other matters; modification company articles of other items of powers, so the contents of the resolution violates the "Company Law " provides that permission will result in its shareholders' meeting on invalid .

 

Because of misleading information and voted in favor . Attended the meeting of voting shareholders should be fully detailed disclosure obligations of beneficiaries. The company's chairman , directors, supervisors or executive, other senior management at the general meeting shall make explanations on the questions and suggestions of shareholders , except in the following circumstances : 1 ) the question has nothing to do with the meeting agenda issues ; 2 ) question issues related to matters pending verified ; 3 ) of questions involving trade secrets ; 4 ) questions will result in a violation of the question of fair information disclosure obligations ; 5 ) other reasonable grounds . If the shareholders attending the meeting in accordance with the company's management is not sufficient even to provide misleading information to the general meeting voted in favor of the resolution matters , and afterwards even if they can prove the existence of misunderstanding and even misleading in favor of its proposed , can not be directly recovered its favor.