Research On Validity Of The External Security Of LLC Under Circumstance Of Violating The Article Of Association

The provisions of the Company Law of 2005 on external guarantees have been improved compared with previous legislation,but relevant provisions are still too concise to some extent.In particular,the conclusion on the validity of external guarantees in violation of the articles of association cannot be directly drawn from provisions.Among them,the validity of external guarantees in violation of the articles of association for limited liability companies is controversial frequently both in practice and in theory.This paper studies it based on the external guarantee rules of companies under the current legislation.It systematically discusses the disposing capacity and rationality of limited liability companies in providing external guarantees.Considering the characteristics of limited liability companies,the effectiveness of the articles of association and the analysis of practical cases,the author summarizes the reasonableness that creditors shall bear formal obligations in accordance with the provisions of the articles of association and further elaborates the essential elements of the validity of external guarantees in violation of the articles of association for limited liability companies in an attempt to provide assistance for alleviating theoretical disputes and substantive disputes through this discussion.This paper is divided into four parts,namely,the overview of the theory for external guarantee of limited liability companies;the controversy of the validity of external guarantees in violation of the articles of association for limited liability companies;essential elements of the validity of external guarantees in violation of the articles of association for limited liability companies;the type and validity analysis of external guarantees in violation of the articles of association for limited liability companies.The first part is an overview of the theory for external guarantee of limited liability companies,which discusses the basic theory of external guarantee for limited liability companies.By expounding the connotation of the external guarantee,it analyzes the legal nature of the articles of association as well as its effect,making a longitudinal observation and horizontal comparison of legal rules of external guarantees of limited liability companies.At the same time,it expounds the idea that market economy encourages the external guarantee of limited liability companies,laws respect the autonomy of private law of market subjects in the external guarantee,and limited liability companies should have less legal restrictions on the external guarantee thanthat of company limited by shares.The second part is the controversy of the validity of external guarantees in violation of the articles of association for limited liability companies focusing on main disputes.First of all,it studies disputes about the understanding and application of Article 16 in the current Company Law.And then it analyzes the controversy over the limitation of guarantee capacity,the application of invalid contract rules,and whether internal behaviors affect external validity in the confirmation of the validity of external guarantees.Combined with typical cases of judicial practice,this paper summarizes common trial approaches of courts in handling cases of companies in violation of the articles of association,summarizes and proposes issues that some current judicial adjudications judge differently towards the same cases and the judgment favoring the interests of creditors.Moreover,it summarizes the emergence of such problems and cognitive differences mainly based on the referee's obligations to the creditor and further explains the irrationality of denying the creditor's obligation to review.The third part is the research on essential elements of the validity of external guarantees in violation of the articles of association for limited liability companies.The argument is divided into two steps.First,it analyzes whether the relatives should undertake the review obligation and analyzes the reasonableness from many aspects by examining the current theoretical game.Furthermore,it draws up the claim that the creditor should undertake the obligation of formal examination on whether the guarantee meets the provisions of the articles of association and further elaborates the concrete criteria of reviewing obligations of creditors.Second,based on the former analysis and conclusion,it summarizes essential elements of the validity of external guarantees in violation of the articles of association for limited liability companies combined with relevant rules of the Contract Law.The fourth part is the type and validity analysis of external guarantees in violation of the articles of association for limited liability companies.First,it delineates various types of the external guarantee in violation of the articles of association for limited liability companies in connection with legal rules.And then it identifies the validity of the articles of association for limited liability companies according to types: that is,it finally identifies the validity of guarantee centering on whether creditors should fulfill their over-viewing obligations with regard to the specific performance of reviewing by creditors in the light of different types of articles of association.This paper aims to probe into the reasonable path of the validity of externalguarantees in violation of the articles of association for limited liability companies and provide a valuable reference for the trial practice based on current legislation via theoretical discussion and case analysis.