决议行为效力规则之构造
徐银波决议行为效力规则之构造
On the Construction of Rules on Validity of Resolutions
期刊名称：《法学研究》
期刊年份：
作者：徐银波
单位：西南政法大学
中文关键词：决议;社团自治;效力规则
英文关键词：resolution;autonomous of communities;rules of validity
中文摘要：
社团决议行为并非法律行为,无法直接适用法律行为规则.物权法、公司法虽设有特别规则,但二者关于决议行为效力类型及瑕疵事由的规定均不周延且相互冲突,无法满足司法需求.非公司法人等的决议行为更面临法律规制漏洞.未来民法典总则亟需增设决议行为规则.规制决议行为的伦理基础并非程序正义,而系社团自治,应围绕社团自治建构规则.应区分决议成立认定与效力判断,经有召集权者召集会议作出多数决,方形成决议.已成立的决议需满足有决议权限、真实性、合法性、合理性要件,方具有法律效力.与之对应,无决议权限、程序瑕疵、表决瑕疵、内容违法、违反规约及侵害成员合法权益将导致决议效力待定、可撤销或无效.
英文摘要：
The adoption of to resolutions by a mass organization is not a legal act and therefore the current civil rules on legal acts do not directly apply to it. Although the Property Law and the Company Law provide for a few special rules on the validity and on the special behaviors or circumstances influencing the validity of adoption of resolutions by mass organizations, these rules are incomprehensive and have conflicts with each other and therefore are unable to meet the needs of judicial practice or social development. In addition, there are legal loopholes relating to the resolutions adopted by public welfare legal entity or by communities without legal status, thereby requiring the General Provisions of the Civil Code to provide for special rules on the adoption of resolutions by these entities. The ethic foundation of rules regulating the adoption of resolutions by mass organizations is not procedural justice, but autonomous of communities, so the rules should be constructed on the principle of autonomous of communities. A distinction should be made between the judgment on the establishment of resolutions and the judgment on the effectiveness of resolutions. A decision on whether or not to adopt a resolution can be made only by more than half or more than two-thirds of members at a meeting convened by those who have the right to convene the meeting and, for a resolution to be valid, it must made by all members who have the authority to adopt resolutions and who vote freely according to the legal procedures, and its substance must meet the requirement of legality and rationality. A resolution may be pending, revocable or invalid if it is adopted by persons without authority to adopt a resolution or by members in violation of procedure rules, or voted by members without the real expression of their wills, or the substance of which is against any mandatory substantive rules or infringes upon the interests of members who vote against resolution.
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