On The Legal Effect Of Limited Liability Company's External Guarantee

Article 16 of the current Company Law stipulates that:"If a company invests in other enterprises or provides guarantees for others,the board of directors or the shareholders' meeting or the shareholders' meeting shall make a decision in accordance with the provisions of the articles of association;if the articles of association stipulate the total amount of investment or guarantees and the amount of individual investment or guarantees,they shall not exceed the regulations." Fixed quota." "Where a company provides guarantees for its shareholders or actual controllers,it must be decided by the shareholders' meeting or shareholders' meeting." "The shareholders prescribed in the preceding paragraph or the shareholders under the control of the actual controllers prescribed in the preceding paragraph shall not participate in voting on the matters prescribed in the preceding paragraph.The vote is passed by more than half of the voting rights of other shareholders attending the meeting." Based on this provision,there are many disputes in theory and practice.Some scholars believe that the law has the effect of publicity,and the agreement violating this regulation should be invalid.But many scholars believe that according to the Contract Law and its judicial interpretation,the agreement violating the mandatory provisions of validity is invalid,while the agreement violating the mandatory provisions of validity is invalid.The provisions of Article 16 of the Judicial Code are of a regulatory nature,and the external security agreement of a limited liability company shall not be invalid because of its violation.In addition to the introduction and conclusion,the article is divided into four chapters.In the first chapter,starting from the behavior of the external guarantee of the company and combining with the governance structure of the limited liability company,the legal risks and necessity of the external guarantee of the limited liability company are introduced,and the basic theory of the company guarantee system and the legal provisions of the external guarantee of the company in our country are further discussed.The relevant legal provisions mainly include Article 16 of the current Company Law,Article 60 of the Guarantee Law of the People's Republic of China and Article 4 of the Interpretation of Several Questions Concerning the Trial Application of the Guarantee Law of the People's Republic of China.The first part of the second chapter analyzes the normative nature of Article 16 of the current Company Law.I believe that the provisions of this article are mandatory,and the violation of the provisions of this law does not necessarily lead to the invalidity of the act.The second part discusses other basic factors that affect the company's external guarantee behavior.Through the foregoing pad leads to the third part,which is the focus of this paper: in special circumstances,the limited liability company external security act of the validity of the determination.Chapter 3 makes a detailed analysis of the legal validity of the external guarantee act of a limited liability company under various circumstances.Among them,the validity of the guarantee contract is determined when the articles of association do not record the matters of the external guarantee,when the act of external guarantee by a limited liability company violates the provisions of the articles of association,and when the legal representative and manager of a limited liability company guarantee the external guarantee in the name of the company.The fourth chapter is mainly about improving the existing sixteenth articles of the company law.It includes the confirmation of the normative nature of this article,the clarification that the matters not stipulated in the articles of association should be decided by the shareholders' meeting,the explicit stipulation of the limit of coverage exceeding the provisions of the articles of association,the determination of the effect within the limit and the effect exceeding the part,and the clarification of the Examination Obligation of the counterpart of the guarantee contract and the company's violation of the regulations under different circumstances.The responsibility for external guarantee should be directly responsible to the other party.