Study On The Effectiveness Of Company's External Guarantee

With the continuous development of market economy,various countries and regions tend to gradually liberalize the control of external guarantees.Compared with the western developed countries,China's market economy started late,and the supporting legal system is not perfect.Therefore,from the company law of 1993 to the company law of 2005,the company guarantee system has been further improved,and the whole company's external guarantee system seeks a breakthrough in conservatism.Whether academic or judicial disputes over the company's external guarantee system are accompanied by the old company law to the new company law.Although the company law in 2005 has been greatly improved,it does not involve the most important determination of the validity of external guarantee contracts.The controversy has become increasingly fierce.How to solve the problem of validity determination of external guarantee contracts has become a major problem for scholars and judges.This article covers four chapters altogether: Chapter 1 is mainly a theoretical overview of the company's external guarantee.This part first elaborates the advantages and disadvantages of the company's external guarantee as a means of business operation.Then it introduces the reference significance of the provisions of Anglo-American law system,continental law system and Taiwan and Macao region of China on the external guarantee system for our company.Finally,it talks about the evolution of the provisions of the new and old company law on the company's external guarantee.The second chapter mainly combs the disputes about the company's external guarantees in the judicial field in recent years and makes a brief comment and analysis with the help of case study.The third chapter is the focus of this article.The first part of this chapter points out that there are inherent defects in judging the effectiveness of the company's external guarantee by the attributes of Article 16 of the Company Law.The way to evaluate the effectiveness of the external guarantee is to judge whether the third party's subjective goodwill is based on the publicity effect of the company's articles of association and the third party's review obligation.The second part of this chapter draws a conclusion that the validity of the third party should not be invalid in three situations: the absence of records in the articles of association of the company,violation of the articles of association of the company,andpersonal ultra vires external guarantee.In the formation process of the resolution on external guarantee of the regional branch company and the two stages of the external guarantee contract of the company,the goodwill of the third party should only be reflected in the external guarantee contract,even in the subjective evil of the third party.Meanwhile,the validity of the external guarantee contract should also be determined.The fourth chapter puts forward some suggestions on perfecting laws and regulations as well as the internal prevention and control mechanism of the company.