A Study On The Effectiveness Of The Act Of Guaranty Outside The Conmany In Violation Of Articles Of Association

The Company Law of 1993 negates the company's ability to guarantee foreign affairs,and holds that if the company provides guarantee to the outside world,the guarantee contract shall be invalid.Under the background of market economy at that time,many large shareholders abused their controlling position and damaged the interests of many small and medium shareholders.Therefore,the Supreme Law tended to advocate denying the company's external guarantee ability and the validity of the guarantee contract.With the gradual development of the financial market,the company's operation has become more standardized and specialized.On this basis,the provisions of Article 16 of the Company Law of 2005 emerged as the times require.Generally speaking,in violation of the articles of association to provide external guarantees and other issues,combined with the provisions of Article 16,paragraph 1,of the Company Law,mainly includes three types of situations.There are great differences in the process of judicial organs using this provision to hear cases.Different courts have different understandings of this provision.There are alsophenomena of "different judgments in the same case" in the trial results.The necessity of research questions is also highlighted.To determine the validity of guarantees provided by companies in violation of the articles of association,it is necessary to clarify the nature of Article 16,paragraph1,of the Company Law.First of all,judging from the legal terms,this clause does not contain mandatory terms such as "must" and "ought",but it does not necessarily infer that this clause belongs to arbitrary norms.Secondly,from the specific content of the provision,the clause implies a mandatory term.Thirdly,from the point of view of legislative purpose,this provision is to effectively avoid the ultra vires of the company's executives and actual controllers,and to regulate the internal behavior of the company.Finally,from the consequences of its violation,the company's violation of the articles of association can be remedied through certain procedures.Therefore,it should be considered that the first paragraph of the sixteenth article of the company law is a mandatory regulatory norm.In other words,violation of the clause does not necessarily result in the invalidity of the guaranty act.Therefore,in order to analyze the validity of the company's breach of articles of association,it is necessary to consider the validity of the articles of association and the formal review obligation of the security holder.This article is divided into three chapters.The first chapter briefly introduces the status quo of the determination of the effectiveness of a company's breach of articles of association.This chapter introduces the legislative evolution of the system in China,analyzes the four common situations of the problem,and analyzes the current judicial practice of the adjudication of the problem.The second chapter focuses on introducing two theoretical paths to determine the effectiveness of a company's breach of statute.The first is to define the nature of the sixteenth paragraph 1 of the company law.By analyzing the differences between arbitrary norms and mandatory norms,as well as between managerial norms and effective norms,it is concluded that this provision should belong to managerialmandatory norms.Therefore,the breach of this clause does not necessarily lead to the invalidity of the contract,so we need to introduce other ways to determine the effectiveness of the act.Secondly,it analyses another way: it introduces the factors that affect the validity of the company's breach of articles of association,and analyses and summarizes them from the perspective of the validity of articles of association and the formal review obligation of the security holder.This paper holds that the articles of association of a company have no validity to the world,but if a commercial activity specified by law is required to comply with the articles of association,the counterpart of the transaction is obliged to understand it properly.In addition,the security holder has a formal review obligation.The third chapter analyzes the determination of the effectiveness of the company's breach of articles of association.First of all,we need to consider whether the behavior belongs to the topic of discussion or to the debt of the company itself.Secondly,it is necessary to determine whether the effectiveness of the ultra vires Security Act can be directly identified.This paper introduces two situations that can be directly identified.Finally,it is necessary to judge whether the security holder has fulfilled the formal review obligation.If he has fulfilled the formal review obligation,the security breach of the articles of association shall be deemed valid;if he has not fulfilled the formal review obligation,it shall be null and void.