Study On The Effect Of Corporate External Guarantee

With the development of the market economy,corporate external guarantee system is playing an increasingly important role in the company's business activities.The process of company's external guarantees sometimes may put company capital at risk,but it will be of great importance in financing,enhancing the company's reputation,the development of small and medium-sized enterprises and so on,so more and more widely used.The newly revised Company Law on corporate guarantees were new regulations,it has been cleared about the company has the ability of guarantee,and restricted the corporate guarantee while admitting the right to maintain the balance of interests.However,the provisions of Company Law on corporate external guarantee system still have some shortcomings.Due to the provisions of Company Law about external guarantee system which are formulated too concisely,and the lack of the judicial interpretation which can give proper explanations,many difficult problems in judicial practices caused by different interpretations and controversies,even the applicable rules of court in the trial is not uniform,similar cases of different convictions phenomenon also happen from time to time.Therefore,it is necessary to analyze the validity of these controversial issues in order to make the correct judgment on the guarantee.This paper is divided into four parts.The first part is mainly to introduce corporate external guarantee system in China,and the specific provisions of Company Law on corporate external guarantee,it also points out the defects of the external guarantee for the following discussion.The second part mainly discusses the effect of corporate external guarantee when the constitution has not stipulated.First of all,it is for the scope's discussion on the validity of constitution,this article argues that the articles of association of listed company have effective on all people,but not for ordinary companies.The second is believe that the shareholders of a company and the board of directors all have the decision-making power on the guaranty of the company,the articles of association does not make provisions on the limit of guarantee is seen on the amount of security without limit,at this time the contract has validity,and has no amount of limitation.The third part mainly discusses the effect of corporate external guarantee when the articles of association are violated.This paper advocates that the key for judging the validity of the guarantee contract still depends on whether the contract relative who is in good faith.If the contract relative person has done the general attention obligations,the contract has the legal effect,if being knows or should know the situation,the contract is invalid.The last part of this paper is also discusses the effect of corporate external guarantee when the articles of association are violated,but different from the discussion of the former two parts,This part is mainly to study the validity of the contract when the company's legal representative,directors,executive officers,etc without the resolution of the decision-making organ or did not comply with the content to guarantee.The article thinks the contract relative person shall review internal guarantee decision,if he fails to perform the duty or have other knowing situation or malicious collusion,then the security contract shall be invalid,otherwise the contract has the legal effect.