| Comparing to corporation Law 2005, Article 60 of Company Law 1993 only had a simple regulation on corporation guarantee, which resulted from the condition of high-speed development of economy were highly controversial. 60 of Companies Law 1993 no longer met the trend of efficiency principle and normalizing guarantee. The new law has changed a lot about guarantee, Article 16 of Corporation Law 2005 regulates on policy maker, procedure,authority and special guarantee, to balance and protect the rights and interests among corporations, shareholders and creditors. So to speak, Article 16 is the core of regulation system on external guarantee. However, since the implementation of Article 16, argues on the application and nature of Article 16 between theory circle and practice circle never stop.Argues come from the comprehension of Article 16, diverse comprehensions is the crux of the problem that whether corporation external guarantee is effective, whether regulation of Article 16 is compulsory norms or even effective norms of law and administrative regulations, whether corporation’s act against Article 16 would render the contract for external guarantee invalid. Academics in theory circle explain it in their own way, it is difficult to reach consensus; Even in judiciary practice circle, because of diverse comprehensions about Article 16,in the end, would cause different judgment for the same case.This article means to analyis the vidict and identify effectiveness of guarantee contract, and exacts an instructive case from the second bulletin in 2011 of Supreme People’s Court. By reviewing the guarantee dispute between China National Building Materials Group Corporation(CNBM) and Yinda Company, obtaining relations of case introduction, dispute focus and reasons for appeal court, this article, therefore, extracts two focuses of corporation guarantee in practice. One focus is that when guarantor violate Article 16,and it is the law that endow articles of associations could regulate policy maker, procedure, guarantee data and other rules of guarantee procedure, could it be the basis of identifying effectiveness of guarantee contract? In theory circle, the nature of Article 16 is still taking issue, different judgments for the same case exist. Is the logic of nature definition and verdict in directly applying Article 16 rational? The other focus is that as exceeding theory and constructive notice theory repealed, posted articles of associations itself could not be the known evidence for a third- party, in this way, what is the possible influence when articles of associations only regulate internal relationship while external behavior happens? What obligation should guarantor perform according to this sanction is the method to identify effectiveness in the article.To identify the nature of Article 16, it’s necessary, from the perspective of Companies Law 2005 regulation system on external guarantee, to systematically analyze regulation content and its function, understand the status of the Article 16, conclude the value choice of law-givers, learn the goal to consider effectiveness and balance interests. What’s more, by studying domestic literature, the author compares and analyzes the views on identifying Article 16 in theory circle, then makes some comments on the debate of permissive norms and compulsory norms, especially the argue of distinguishing effectiveness and management specification,and tries to analyze the nature is inner effectiveness compulsory norms starting from the original intention of legislation. Meanwhile, the author collects some court decisions made by some local courts after the case ruled, analyzes the function of Article 16 in practice and the traditional judicial logic,analyzes the judicial logic profoundly according to organized regulation nature above and the difficulty to distinguish nature in practice. The author holds that the method to identify effectiveness should not start from the perspective of nature definition about Article 16.It runs contrary to the original intention of legislation to build the bridge of identifying the effectiveness of guarantee contract by this medium, and does not meet the identification logic of external validity.The author also makes literature review on several mainstream views in theory circle, induces the position of articles of associations when identifying the effectiveness of guarantee contract, stretches to the effectiveness of articles of associations.It is one of the key points this article aims to elaborate that whether the guiding function provided by articles of associations could extend to guarantor under legal restrictions. The author considers that it would cause both sides the risk of interest loss and lawsuit if there is no essential liability to bind behavior when guarantor accept guarantee. While we deal with guarantee contract,the contract settled by equal subjects should comply with the rules of Contract Law, it is the key point of identifying effectiveness of contract to judge the third-party in good faith, which the judicial logic should based on. Then, among those situations violating articles of associations, what kind of duty of care should the third-party perform to be judged in good faith? The author analyzes the essential duty of care guarantor should perform when sign a contract. Based on theory of Companies Law and trading in practice, operable and reasonable duty of care is the premise to achieve acting in good faith, the author states that standards of formal examination meet the requirement, and also analyzes the legal issue of hostile counterpart. In article, the author also analyzes the case, approve the influence of this case, meanwhile, points out the grounds of decision are unconvincing, and repete the reasonable way to vedict the contract what the paper insists.Above all, after teasing out and demonstrating corporation guarantee, the author finds out some flaws and deficiencies in external guarantee regulation in China, based on which, put forward several operable suggestions. These suggestions mainly focus on system loophole and implementation dilemma. Firstly, aiming at loophole existing in external guarantee system, the author will define attitude and put forward suggestions from the perspectives of special term of corporation, situation not covered by articles of associations,guaranty corporation and data of external guarantee. Secondly, in light of the dilemma caused by implementing existing examination,the author hopes to improve from aspects of corporation internal staff and a set of technical measures. In concluding remarks, the author also evaluates corporation guaranty cases in the latest bulletin of Supreme People’s Court, the court does change verdict thinking, yet, the requirements on formal audit seem not strictly. |
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