Research On The Effect Of Company’s External Guarantee

The creation and development of company system have promoted the human society commercial civilization to an unprecedented height. China has entered the late industrialization, to establish and to perfect the modern enterprise management system is one of the focus of deepening the Reform and Development. The internal governance and the external behavior of the company is still an important issue that is worth studying.At the present stage that capital market is still not perfect, the ways of debt financing is still widely used in small and medium sized enterprises. The guarantee is the basic mean to achieve debt and to facilitate transaction. Company laws of different countries have admitted that the company have the guarantee ability, but adopt different method in judging the effect of guarantee contracts. Civil law countries use pre-regulations, but Common law countries use ex post evaluations, they are the typical modes. The company guarantee theory has been a hot topic in the theory circle of our country, the study of it has made the preliminary achievement. But at present, there are still a lot of controversy about judging the effect of the foreign guarantee contract in both the theory circle and practice circle.The author uses the method of empirical analysis, taking a large number of real cases to study, pointing out the problems about values of judgment and allocation of responsibilities. Then the author analyzes the factors about the effect of the foreign guarantee contract. The author thinks it is not logical to use analysis about article 16 of "company law" as the prerequisite for solving problems. To distinguish inside legal relationship and outside legal relationship, and to analyze the value conflicts between company law and guarantee law has theoretical significance.On the basis of the above analysis, the author point out the regulation to judge the effect of the company’s foreign guarantee contract. The judge should uphold the principle of multiple values, both of freedom and order, efficiency and fairness. The author proposes an idea that judging the effect of contract in three cases. It is the company organization that makes a resolution on the guarantee different from articles of association; directors and manages make resolutions on the guarantee with out the resolutions of company organizations; articles of association do not provide matters of guarantee.The author analyzes how to measure interest and judge value in different circumstances, and how to judge the effect of contract by using the basic principles of law. Further, the author point out the measures that should be taken after we have judged the effect of contract. Only use these composite measures, can the judges properly handle problems in judicial practice, and optimize a variety of resources, maximize the interests of all parties, so as to promote the prosperity and stability of economy and society.