Study On The Application Of Legal Judgment Of Corporate Guarantee

Corporate external guarantee is a very important means of financing,but in reality,there are always some hidden risks.The Companies Act promulgated in 2005 fully paid attention to the disadvantages with the application of corporate guarantee.In order to standardize the behavior of corporate guarantee,the Law specifically sets three clauses in Article 16 to stipulate the issue of corporate guarantee,which plays a positive role in preventing guarantee risks and protecting the interests of companies and shareholders.The rules are not very complete,however,there are numerous disputes in theoretical and pratical circles.In the article16 of the Company Act,such issues as specification attributes,the influence of the company’s articles of association on the company guarantee contract effectiveness,hypothec persons,whether to have the duty to review the company’s articles of association,how to evaluate security right person’s subjective good faith,and legal responsibilities after guarantee is invalid have not been solved in agreement,which makes the judge in using the clause referee,uncertain.The results of "Different judgments for the same case" have been produced one after another,which has seriously harmed the credibility of justice.It is regrettable that the latest revision of the Companies Act in 2013 still adopts the guarantee specification in the Companies Act in 2005,and fails to respond to the problems that need to be clarified urgently.Moreover,the judicial interpretation of the Company Law issued is vague on the issue of corporate guarantee.In the face of the judgment dispute,the Supreme People’s Court made efforts to improvethe Minutes of the Nine People’s Conference and the Interpretation of the Guarantee System of the Civil Code to try to end the judgment disagreement in the case of corporate guarantee.The existing literature rarely systematically studies the problem of corporate guarantee,and seldom deeply analyzes the problem of corporate guarantee.To this,this article attempts to study the legislation in our country company guarantee systematically and practice analysis,insight into the constitution of the company guarantees the internal resolution and substantive connotation,resolution company guarantees the internal and external guaranty contract validity between the implicated relation,to straighten out that company guarantee contract effectiveness of logical thinking,has certain enlightening research conclusions,and for our company guarantees the case judicial referee path selection and the perfection of legislation put forward corresponding Suggestions.In addition to the introduction and conclusion,there are six chapters in this paper.The contents are as follows:First chapter "our company guarantee legislation evolution and the referee for the status quo",this chapter combed the in 1993,the company law guarantee and in 2005 the company law legislation guarantee legislation characteristics,and selection of the Supreme People’s Court hearing a case and the Supreme People’s Court gazette published in the gazette case analysis,to spy out the Supreme People’s Court referee thinking about company guarantee case.At the same time,a total of 300 judicial documents were retrieved from China Judicial Document Network,Peking University Fabao and other resource databases,and a statistical analysis was made on the judgment of corporate guarantee cases,which revealed the phenomenon of "different judgments in the same case" caused by the incomplete legislation of Article 16 of "Company Law".Based on this dispute,the Supreme People’s Court has been committed to the unity of the position of the judgment on the above issues.At the end of this chapter,the judicial spirit of the judgment of the Supreme People’s Court on corporate guarantee cases in each period is sorted out.The second chapter "Binding Analysis of the Application of Corporate Guarantee Judgment",based on the confusion of the judgment of corporate guarantee cases reflected in the first chapter,this chapter aims to analyze what causes this phenomenon.First of all,corporate guarantee is a double-edged sword,which involves many subjects,resulting in a mix of advantages and disadvantages.The particularity of corporate guarantee requires that the system not only supports its guarantee function,but also restricts the huge damage caused by illegal operations.Secondly,the incomplete law of corporate guarantee leads to the difficulty in judging the law,the legal consequences of corporate guarantee beyond its authority are not clear,the external effect of the internal behavior of corporate guarantee can not be effectively defined,the law is too concise and many other deficiencies and problems,which hinder the law enforcement and judicial personnel to accurately understand and implement the law.Dislocation in the end,the judicial referee concept leads to the judgement to reasons,on the one hand,judge the single linear dissever the relationship between the diversification of the company guarantees the referee thought,lack of solving the problem of company guarantees on the legal system of carding and integration,on the other hand the referee thought absolute bias,commercial appearance too focused on protecting the interests of trading relative person.The third chapter,"Selection of Applicable Methods of Corporate Guarantee Legal Judgment--Introduction of Interest Measurement Method",mainly analyzes the limitation of the generally applicable standard analysis judgment path for corporate guarantee cases,and demonstrates the appropriateness of the interest weighing method in the application of corporate guarantee case judgment.To be specific,on the one hand,in the judgment path of normative analysis,the judgment path of normative nature identification and the judgment path of internal limitation theory both have great limitations,which cannot be justified under the existing corporate guarantee standard.On the other hand,the loopholes of the legal consequences in Article 16 of the Company Law and the value conflict between the Company Law and the Contract Law in the company guarantee dispute itself make the judgment of the validity of the company guarantee contract come down to the value judgment,and the interest measurement method is naturally consistent with the legal judgment of the company guarantee.The balance of interests in the judgment of corporate guarantee cases needs to be realized by embedding a relatively flexible elastic factor.The fourth chapter is "Logical Approach to the Determination of the Validity of Corporate Guarantee Contract".This chapter mainly discusses several important issues that need to be straighten out in the determination of the validity of corporate guarantee contract,clarifies the implicative relationship between the internal guarantee resolution of the company and the validity of external guarantee contract,and explores the reasonable approach to the determination of the validity of guarantee contract.Specifically,first of all,to clarify the path of contract effectiveness determination,the first problem to be solved is the positioning of the company’s guarantee resolution.Of course,the company’s guarantee resolution should be made by the decision-making body with the right to make the decision,because the guarantee without authorization basis belongs to the over-authority guarantee.Secondly,regarding the implication between the internal resolution of company guarantee and the effect of the external contract,Article 16 of the Company Law extends the internal effect of the articles of association and the resolution of the company to the external in the way of legal declaration,so as to exert a certain effect to the external.Finally,the legal representative’s excessive guarantee should be solved first is whether the effect of the behavior belongs to company,before contract effectiveness of judgment in the discussion space,can analogy for unauthorized agency system make up the legislation of the legal representative of the ultra vires blank,give the company the right to require ratification by his legal representative of the ultra vires,decide whether the behavior is ratification by the company.The fifth chapter,"Stitching the gap between the application of the judgment of the corporate guarantee norm--the review obligation of the security right",carries on the argumentation results of the third chapter and the fourth chapter,and mainly discusses how to realize the determination of the validity of the guarantee contract by embing the review obligation of the security right,so as to realize the dynamic balance of the judgment of the corporate guarantee cases.This chapter first analyzes the importance,necessity and rationality of the audit obligation of the security right,and then discusses the standard and basic content of the audit obligation of the security right.Furthermore,this paper discusses the criteria for determining the good and evil intentions of the security holder,the distribution of the burden of proof of the security holder’s good and evil intentions,and the responsibility of the security holder in the case of bad faith.Finally,this chapter analyzes the special review obligation of security right holders of listed companies.Chapter 6 "Rebuilding the Law of Corporate Guarantee and the Application of Judgment",aiming at the problems presented in Chapter 1 and Chapter 2,this chapter aims to discuss how to reshape the law of corporate guarantee and the application of judgment system.Specifically,at the legislative level of corporate guarantee laws,the remodeling and improvement of corporate guarantee norms should at least fill the legal consequences of overstepping the authority of the guarantee,clarify the representative authority of the legal representative,and clarify the validity boundary of the corporate guarantee resolution.At the level of thinking shift of judgment on corporate disputes,we should establish a dialectical and unified concept of civil and commercial trials,pay attention to the application of the principle of balance of interests in commercial trials,and make good use of interpretation methods to fill legal loopholes.We should adopt a comprehensive and systematic thinking model to promote the precision,actionability and arbitrability of legislation and eliminate the fragmentation of legal interpretation.In addition,as a company law integrating organizational law and behavior law,it must follow the unique thinking mode and method of commercial law in value goal,normative design,judicial judgment,etc.,which are just the starting point and end point of value goal and system design of the company law.Therefore,it is necessary to introduce and apply the thinking of commercial law to guide the revision of the company law.