Research On System Of The Company Guaranty

In a social environment where business activities are increasingly prosperous,the company as legal person provides guaranty for others,which is not only the right of the company under the personalization scenario,but also a need for the company to participate in modern economic activities.However,that the company provides guaranty for others will inevitably involve conflicts of interest between the guarantor and the company’s shareholders and creditors.The legal system of the company’s guaranty for others is to balance and adjust this conflict of interests to the maximum extent,which provide protection for the operation and the legitimate rights and interests of the company’s shareholders and creditors.China’s 1993 "Company Law" Article 60,paragraph 3 provides for the company’s guaranty system,but because it is only a general provision,and does not specify the specific legal consequences,it has a lot of controversy in judicial practice.Since the beginning of the new century,Article 16 of China ’s 2005 “Company Law” has made more specific provisions on the company ’s guaranty system,and has continued to use this provision in all subsequent revisions of the “Company Law”,but the provision does not specify specific The legal consequences of this have led to many difficulties in the application of this provision in judicial practice.Therefore,the core point of the author’s research in this article is the effectiveness of the guaranty for others in violation of Article 16 of the "Company Law".The first chapter of this article mainly discusses the provision of guaranty for others as the rights and capabilities that a company should enjoy as a legal person,and then explains the acquisition of the company’s ability to provide guaranty for others,and the role and limitations of the company’s guarantees for others.The second chapter is a comparative study of China’s laws on guaranty provided by companies to foreign legislation.The author first systematically studied the legislative history of our country’s companies providing guaranty to others,and compared the changes in the people’s court’s judgment with reference to related cases.In addition to the formal legal provisions,the author has also studied the policy documents issued in recent years,trying to find out from these documents the legislative logic and value orientation of the upcoming judicial interpretation.Finally,the author summarizes several ways of thinking that the extra-territorial legislation provides guarantees for the company to others,and expounds the reference significance of the extra-territorial legislation model to China’s future legislation.The third chapter is the core chapter of this article.The author starts from the core focus of the company’s guaranty for others.First,it starts from the normative nature of Article 16 of the "Company Law".After analyzing the rationality of various views,the author concludes Article 16 of the Company Law is a compulsory regulatory norm,but it cannot be directly judged as to the effectiveness of guaranty that violate Article 16 of the Company Law by simply identifying it as a compulsory regulatory norm.Therefore,the author introduces an analysis of the third party’s review obligations at this time.After determining that the third party should be subject to the formal review obligations,the author believes that the determination of the third party’s review obligations is to better eliminate Article 16 of the “Company Law” The determination of the validity of the solution shall be included in the framework of Article 50 of the Contract Law for judgment.The latter author further believes that the issue of the determination of the effectiveness of an unauthorized agency contract under a non-good faith situation should be analogously applied to the relevant rules of unauthorized agency.Is invalid,and the guaranty contract is ultimately invalid because neither the agent nor the counterparty agrees to enter into a contract with each other,so the author believes that if the guarantee is violated in Article 16 of the "Company Law",if the counterparty reaches the form of performance The standard of good faith for the review obligation is valid for the guaranty contract.Otherwise,the guaranty contract is invalid.