Analysis Of The Effectiveness Of One-person Company's Related Party Guarantee And Its Explanation Path

In response to the actual needs of economic development,the Company Law of China was revised in 2005,in which the company's external guarantee system and oneperson company system were recognized.However,as the combination of the two systems,the Company Law is not cleat about the requirement of the one-person company's related party guarantee.Whether the issue applies to Article 16 of the Company Law or not has been controversial in academic circles,and in judicial practice,there are also lots of differences during the trials of the courts.In 2019,the Supreme People's Court issued the Minutes of the National Court of Civil and Commercial Trial Work Conference,which gives the trial standard of the company's external guarantee cases,but this standard seems not be applicable to one-person company.An article,which was written by Judge Zhou Lunjun of the Second Division of Civil Trial of the Supreme People's Court,contained his attitude against one-person company's related party guarantee.What's more,the Supreme People's Court held the same opinion according to its draft of comments on trials of guarantee disputes issued in 2018.On the contract,judgments in support of one-person company's related party guarantee play a major role in all this kind of cases.This ambiguity of trial and system makes the research on the issue still necessary.By horizontally combing the viewpoint of a one-person company's related guarantee adjudication and comparing it vertically with relevant cases of limited liability companies in the general sense,at present the adjudicative viewpoint of oneperson company related guarantee can be classified into four kinds: the theory of force coercion,the theory of ultra-power security,the theory of intention expression and the theory of normative function.What's more,the four theories are not evolving,but exist at the same time.However,with the promulgation of the Minutes of the National Court of Civil and Commercial Trial Work Conference,other limited liability companies have already established the theory of ultra-power security as the standard adjudication mode for such cases.Because the theory of force coercion and the theory of security of ultra-power security are borrowed from the general refereeing theory of limited liability companies,the judges are more adept at copying and lacking meticulous reasoning,there are actually many logical contradiction when applying the two theories into one-person company disputes.In recent years when the Supreme People's Court tried such kind of cases,the theory of intention expression and the theory of normative function avoided the contradiction of literal application of the company law as much as possible.Through an in-depth analysis of the legislative purpose of Article 16 of the Company Law,it is believed that according to the existing legal system,one-person company related guarantees should be allowed,and other issues can be used to solve the issue of the protection of the interests of creditors and the corporate personality independence.On the basis of the existing legal hermeneutics,Article 16(3)should be expanded to explain that it is not necessary for a one-person company to establish a related-party guarantee to settle a resolution through the withdrawal of interested shareholders,but it should still form a corresponding written document.The last part advocates that on the basis of the existing law hermeneutics,the authorities can learn from the practices of Britain and Germany to further perfect the loopholes that could not be reasonably filled under the existing system.