Research On The Effectiveness Of The Company’s External Guarantee

The regulation of the validity of the company’s external guarantee is great significance for protecting the rights of all parties to the external guarantee and protecting the interests of investors within the company.Through case analysis,it is found that in the process of applying the law in the trial practice,the judges have different opinions on the ways of examining the external guarantee,the protection of the interests of all parties and the effectiveness of the external guarantee.The same is true of theorists.In terms of legal provisions,when the Company Law was amended in 2005,China stipulated the company’s external security in the form of 16 articles,which recognized the company’s external security rights.As the company’s external guarantee is manifested in the form of external guarantee contract,the effectiveness of external guarantee should also conform to the relevant provisions of the Contract Law,the Guarantee Law and the General Rules of the Civil Law of China.In August 2018,the Supreme People’s Court discussed the specific implementation and the application of law in the Explanation(Discussion Draft)on the Application of Law in the Case of Trial of Disputes over Guarantee Provided by Companies to Others,reflecting the importance attached to the validity of company’s external guarantee.However,due to different views on related issues,it is still in the discussion stage and has not been published in the form of formal judicial interpretation.Therefore,the improvement of the effectiveness of the company’s external guarantee has important practical significance,which needs to be analyzed and improved.This paper mainly discusses the validity of the company’s external guarantee from the following aspects,and puts forward reasonable suggestions.Firstly,it analyses the basic principles of external guarantee and its effectiveness,through concepts,nature,rights and obligations,etc.Understand the basic principles of the effectiveness of the company’s external guarantee,and make a comparative analysis of the legal provisions.Secondly,it studies the effectiveness of external guarantees.Through the analysis of the constituent elements and specific circumstances of the validity,invalidity and non-validity of the company’s external guarantee,and combining with specific cases,the author finds out the disputed views of experts and scholars in the actual trial activities.Especially in the special type of relative person’s obligation to examine,articles of association and solely state-owned company,the influence of the examination and approval procedure on the validity of the company’s external guarantee is discussed.Find out the disputes and legislative loopholes in improving the effectiveness of the company’s external guarantee.Thirdly,it makes a comparative study of the validity of the company’s external guarantee.From the perspective of comparative law,we can get the inspiration of the internal articles of association,the obligation of review of the relative person and the legal mandatory provisions on the validity determination,so as to provide a reference for rationalization proposals.Finally,through the above analysis,this paper puts forward perfect thinking on the problems existing in the validity of the company’s external guarantee.It includes clarifying and perfecting the procedural mechanism of the effectiveness of external guarantee and perfecting the legal regulation of the effectiveness of external guarantee from the perspective of the Company Law.In order to reduce disputes in practice and theory to a greater extent,and effectively protect the legitimate rights and interests of all parties.