An Empirical Study On The Effectiveness Of The Company's Overriding Guarantee Contract

The problem of the effectiveness of the contract of the company over the external guarantee has always been a problem in the corporate law.Through the statistics and research on the referee cases in the past ten years,it is found that there are many kinds of referee ideas in such cases.Through the big data statistics,it is found that there are mainly three kinds of referee ideas,which are summarized as follows: First,the administrative mandatory provisions and the mandatory provisions of the effectiveness of Article 16 of the “Company Law of the People's Republic of China” are distinguished,and then In accordance with Article 52 of the Contract Law of the People's Republic of China,the effectiveness of the company's external guarantee contract is further determined.If it is determined that Article 16 of the "Company Law of the People's Republic of China" is a mandatory mandatory provision,the company shall determine that the external guarantee contract is invalid.If the clause is determined to be a mandatory administrative provision,the company shall determine that the external guarantee contract is valid.In addition,the court separates the first and second paragraphs of Article 16 of the "Company Law of the People's Republic of China",and considers that the first paragraph of the article is a mandatory administrative provision and the second is a mandatory provision.The second is that Article 16 of the "Company Law of the People's Republic of China" is only for the internal management of Chinese companies,and its effectiveness does not involve the effectiveness of the company's external guarantee contracts.Moreover,the company's articles of association and resolutions are only internal documents of the company,and they cannot form a binding force on the counterparties of the secured transactions.Therefore,under this kind of thinking,the multi-referee company is more effective than the external guarantee contract.The third is to determine that the company's over-authorization of external guarantees is essentially a manifestation of the representative of the company's representative.Therefore,the validity of the judgment should be analogized to the relevant provisions of the 50 th article of the Contract Law of the People's Republic of China.If the secured transaction is in good faith,the representative form shall be represented by the representative.At this time,the guarantee contract is valid;if the secured transaction is relatively malicious,the representative of the contract is not established,and the guarantee contract is invalid.In addition to the above three referee ideas,there are still other ideas in practice,which shows that the company's overriding external guarantees are complicated.However,through the big data research,no matter what kind of refereeing ideas are adopted,the overall referee position of the practical circles is to focus on protecting the counterparts of the secured transactions.The continuation of the status quo of such referees will lead to a lack of transaction security in the company's secured transactions and the suspicion of excessive application of the commercial appearance principle.In the context of the difficulty of financing the capital market,if the referee cannot reasonably balance the interests of all parties,it will hinder economic development.There are three main viewpoints on the theoretical analysis of the company's over-authorization of external guarantees: the analysis of the effectiveness attribute,the internal and external effectiveness of the company's behavior,and the representation of the ultra vires.Combined with the historical evolution of the formulation and revision of the "Company Law of the People's Republic of China",we find that these major doctrines are a bit thinner for taking on the responsibility of solving the analysis of the effectiveness of the company's external guarantees.Therefore,if the flexible flexibility factor of “relative person review obligation” is introduced,the solution to the problem will be of great benefit.Of course,there are opponents in both the theoretical and practical circles who believe that if the company's external guarantee transactions are subject to review obligations,it will increase unnecessary costs for the company's external guarantee transactions.If the transaction costs increase,it will inevitably dampen the enthusiasm of the commercial entities.However,after the analysis of big data in practice and the discussion of various academic disputes,it can be found that the obligation to review the company's external guarantee transactions is not “unreasonable and demanding”,but has a certain theoretical basis to support it.Moreover,as long as the company's obligation to review the relatives of the company's external guarantee transactions is reasonably limited,then the problems that the opponents are worried about can be avoided.First of all,it is in line with the legislative intent of Article 16 of the "Company Law of the People's Republic of China" to review the obligations of the counterparty of the secured transactions.This will better maintain the security of the transaction and balance the interests of all parties,thus achieving the legislative purpose of the "Company Law of the People's Republic of China" more satisfactorily.Secondly,from the perspective of statutory restrictions and agreed restrictions,it is also reasonable to review the obligations of the opposite parties in the secured transactions,which is consistent with the principle of matching risks and returns in commercial transactions.Finally,in order to review the obligations of the secured transactions,the Article 16 of the Company Law of the People's Republic of China and Article 50 of the Contract Law of the People's Republic of China can be effectively stitched.In the judgment of "knowing or should know" the standard of goodwill to the subjective state of the opposite party of the secured transaction,the judicial judgment can be better assisted in judging the contract effectiveness of the company's external over-authorization guarantee.Although there is sufficient legitimacy for the obligation to review the security transaction,it is not free to do so.The review obligation of the counterparty of the secured transaction shall be limited to the scope of the formal review.In terms of the content of the review,the documents to be reviewed include the company charter and the company's guarantee resolution.Specifically,the counterparty of the secured transaction needs to stipulate whether the company can conduct external guarantee transactions,the amount of the company's external guarantee transactions,the company's legal representative or the person in charge of the representative's authority,etc.,related to the effectiveness of the company's external guarantee transactions.A reasonable limit comparison with the guarantee resolution provided by the company.The relatives of the company's external guarantee transactions only need to fulfill the duty of attention of the general me rchants.By introducing the elastic factor of “relative person review obligation” in the company's external guarantee transaction,we can judge the effectiveness of the company's over-authority external guarantee contract by judging the subjective state of the guarantee transaction counterpart,so that the guarantee can be distributed more reasonably.Responsibility to maintain the security of the trading market.