| Corporate guaranty, as the most significant economic activity of the companies,not only undertake the task of financing for the company to make money,also is animportant part of economic market. Whether to provide guarantee for the company’sown debt, or a debt for others,they all have brought the corporation a huge risk. Asthe fact,equity concentration and the perfect of corporate governance has not yetcomplete, corporate external guaranty, is to become the current urgent problems. In2005， the new <company law> is introduced in this big background. However, thenew <company law> does not seem to have completely solved the problems ofcorporate external guaranty.Whether in theory or in practice,about the new<company law> article16, there is controversy. Such as the company law article16isthe effective standard or administrative specification? When a company violates the<company law> article16th, the guarantee is invalid or not? When the companyarticle of the association is not clear about corporate external guaranty, how about thecompany guarantees effectiveness? This paper summarizes these questions and finddifferent answers and then give it my own opinion.Hope my opinions can give thecorporate guaranty a good answer.This paper is a combination of the current academic and theoretical circle for the company law of the debate of the academic research papers. The author in order tobetter proceed from the Angle of the company law article16, direction in practice andtheory two direction analysis demonstrate the effectiveness of the corporate guarantee,this paper not only analyzes the guarantee of our country company laws andregulations, as well as comparative analysis of foreign laws and regulations. Andfound107articles about the company’s external guarantees, and analyze the sentencestructure, to understand the current court for understanding and using of <companylaw> article16.This article is divided into five parts altogether, the first part is introduction,mainly discusses the content of the selected topic significance, the author alsointroduces the content of this article writing, the difficulty and innovation, have theeffect of the future.The second part is an overview of the company guarantee system, this part ofcontents is more, mainly uses the comparison analysis toward the guarantee system ofvertical and horizontal comparative analysis. First discusses the concept and types, theguarantee system of the company next to transverse comparison between countrieslegislation, at the same time in order to the longitudinal comparison for guarantycompany legislation in our country, the author analyzes the legislative debate so as topromote to the company law in1993in order to solve the1993law loophole moresituation, arises at the historic moment of the company law in2005.The third part mainly elaborated the around2005, the company law article16thdispute, the theoretical circle respectively from "under the new company lawviolations, guarantee the effectiveness of""the third person in the company lawreview obligation to guarantee the effect of" and "the company’s articles ofassociation of the impact on company guarantees effectiveness" these three aspects toelaborate. Thesis in the fourth chapter is to the judicial practice of the company lawarticle16questions for Angle is discussed. Do not guaranty mainly divides into "thearticles of the company decision-making authority, guaranty decision should be madeby who","is the company’s decision to guarantee authority authorized can turn","beyond the limitation of the company’s articles of association of the validity of the guarantee","company debt guarantee program for shareholders" and "the interests ofthe shareholders are to enjoy guarantee, how the company law" under paragraph3ofarticle16these five aspects were discussed, how these five questions will affect theeffectiveness of the company guarantee and the five problems and how to solve.The last part talked about a better improvement the corporate guarantee system.The author gave some amendments to <company law> article16th, at the same time,there are some changes of judicial interpretation. Not only that, the author also toreview the company’s articles of association, and the third person’s obligation to putforward some suggestions. |
