Research On The Effectiveness Of One-Person Company Guarantee For Shareholders

The 1993 Company Law only made ambiguous provisions on the company's ability to guarantee shareholders 'rights.After the company law was revised in 2005,Article 16 clearly stipulated that the company has the right to guarantee shareholders' rights.The corresponding distinction is made according to the difference between internal and external guarantees.When the company provides guarantee to shareholders or actual controllers,it must be decided by the shareholders' meeting and approved by more than half of the voting rights held by the shareholders participating in the resolution.The shareholders and actual controllers cannot participate in the voting.This led to the author's thinking about the effectiveness of the one-person company's guarantee for shareholders.The one-person company is owned by a shareholder,and the shareholder is the actual controller.Moreover,the one-person company does not set up a shareholders' meeting and cannot directly apply the tenth the provisions of Article 6.There are academic disputes on this issue.In judicial practice,although most courts recognize the validity of the agreement that a one-person company provides guarantees to shareholders,a few courts have issued negative judgments.Based on this,the author launched a discussion on the effectiveness of the one-person company's guarantee for shareholders.This paper intends to analyze the problem from five aspects as follows:The first part: Combining the main views of judicial practice and theoretical circles on the effectiveness of a one-person company's guarantee for shareholders,as well as the deficiencies in the argumentation of the existing views.I think that the issue can be demonstrated from theperspectives of a one-person company's ability to guarantee its shareholders,the subject of the intention,and the risk of commercial transactions through a comprehensive analysis of legal actions.The second part :Discuss whether a one-person company has the right ability to guarantee shareholders.By demonstrating that the one-person company's ability to guarantee shareholders' rights is not restricted by the particularity of the legal person and has legitimacy,and does not violate legal provisions,it discusses that one-person company has the right to guarantee shareholders.The third part : Analyze the applicability of article 16 of the Company Law to one-person companies,collate the relevant opinions of scholars,and put forward my opinions.In my opinion,article 16 of the company law is set in the general chapter,which should apply to all types of companies.I propose that this provision can also be applied to one-person companies by means of legal interpretation,and analyze that this application will not violate the purpose and intention of legal norms,so as to achieve the self-consistency of the arrangement of provisions in the legal logic.The forth part : Make a comprehensive evaluation of the effectiveness of the one-person company's guarantee for shareholders from both the positive and negative aspects,including the significance of the one-person company's guarantee for shareholders and the impact of the risk of the guarantee.Finally,it analyzes whether the creditor of the other side of the transaction should undertake the examination obligation and the influence of such obligation on the guarantee effectiveness,and discusses the guarantee issue of the wholly state-owned company.The fifth part:Analyze the shortcomings of our company's system for the implementation of shareholders 'meeting centralism,relying solely on the resolutions of the shareholders' meeting to protect the interests of shareholders may not be fully realized,and put forward suggestions for the improvement of one-person corporate governance capabilities,including the establishment of external audits and strengthening of internal supervision,etc.It is also clear that these measures are requirements for the supervision of one-person companies and their shareholders,not for the purpose of limiting the effectiveness of guarantees.