Research On The Problem Of The Company Guarantee For The Shareholders

Under the condition of market economy, the corporations are increasingly developing, and the phenomenon of providing guarantee for shareholders is becoming more common. Guarantee as a means of profit will inevitably bring certain risks. All countries in the world adapt rigorous regulations to limit the corporation guarantee, and China is no exception. As the corporations’status is getting rising and countries have deeper understanding with it.In the Corporation Law of China revised in 2005, it not only established the ability of the company guarantee for shareholders,but also made further detailed provisions in company guarantee.The Corporation Law revised in 2013 adopted the provisions of the Corporation Law in 2005, but it does not mean that Corporation Law on the provisions of shareholder guarantee has been no controversy. In fact, there still exists great controversy in the theoretical circle and judicial circle,and it results in the different verdict in the same kind case.The focus of controversy mainly concentrates in the effective issue of the corporation guarantee for shareholders, the explanations issue about the second paragraph of the 16th article in Corporation Law, and the review obligations of guarantor. The purpose of this paper is starting from a case, through the typical case analysis and interpretation about the second paragraph of the 16th article in Corporation Law to carry out the research to the problem of corporation guarantee for shareholders.This thesis is divided into four parts:The first part:introduction and analysis of the case. This part introduces the typical judicial case-Zhang Jiajie rural commercial bank financial loan case, analyzes court judgments based on different judge thoughts,and draws forth the effective issue of corporation guarantee and the review obligation of guarantor.The second part:the effectiveness of the corporation guarantee of the shareholders. As for the effectiveness of the corporation guarantee for shareholders, the focus of controversy in the academic circle is that the provision of the second paragraph of the 16th article in Corporation Law is whether is effective or manageable. There are also controversial in judicial circles,and the phenomenon of the different verdict in the same kind case often appears.This article believes that the second paragraph of the 16th article in Corporation Law is not the effectiveness of mandatory provisions.Violation of the provisions of this clause will not make the guarantee behavior be invalid. This section attempts to interpret the provisions of the second paragraph of the 16th article in Corporation Law.The third part:the review obligation of guarantor. Whether the guarantor has review obligation, academic circles and judicial circles are controversial,and mainly divided into positive, negative theory and compromise theory.This part combines the relevant provisions in the Corporation Law Article 16 and the Contract Law Article 50 and in the Supreme People’s Court on Several Issues concerning the application of the people’s Republic of China Guarantee Law, tries to analyze whether the corporation has review obligation to guarantor and what review obligation it possesses.The fourth part:one-man corporation guarantee for shareholder. This part mainly analyzes the current situation about one-man corporation guarantee for shareholders to China’s Corporation Law the 16th article, paragraph 2 and paragraph 3, studies one-man corporation guarantee capacity for shareholders,and sums up the limitations of China’s Corporation Law about one-man corporation of shareholder guarantee legislation. Because of the development of one-man corporation in our country, the phenomenon of one-man corporation guarantee for shareholders is more and more, our country should regulate and provide legal basis for magistrates’ courts. As for China’s Corporation Law about one-man corporation guarantee for shareholders,it is blank.We should try to put forward legislative suggestions and safeguard the interests of guarantee.