| In 2005,the company law was amended systematically,and relevant regulations on the external guarantee of the company were made.Specifically speaking,on the one hand,it defines the right of the company’s external guarantee in law,and gives the company’s articles of association the right to choose the decision-making body of the matter within a certain range;on the other hand,it also clearly divides the types of the company’s external guarantee,and authorizes the company’s articles of association to independently stipulate the amount of external guarantee,etc.Therefore,it is relatively mature legislation.This amendment has made a qualitative leap on the legal issues of the company’s external guarantee,greatly enriching the development of the legal system of the company’s external guarantee in China.This provision was followed in the company law amendments in 2014 and 2018.In August 2018,the Supreme People’s court formulated the interpretation(Draft)of the Supreme People’s Court on the legal issues applicable to the trial of the company providing guarantee for others,and passed the minutes of the civil and commercial trial work meeting of the national court(Fa [2019] No.254)on September 11,2019,which is also for the public.Firstly,this paper focuses on the identification of the normative nature of Article 16 of the company law,systematically combs the different views of the normative nature of the article,and concludes that the article belongs to the mandatory management provisions,and then makes a comprehensive analysis through the combination of theory and practice,and then expounds the relationship between the normative nature of the article and the effectiveness of the company’s external guarantee.That is to say,the nature of Article 16 of the company law is the basis for judging the effect of foreign guarantee resolution,rather than the direct basis for judging the effect of foreign guarantee contract.Therefore,the breach of this clause does not necessarily result in the invalidity of the contract.The specific effect of the contract should be judged by combining other factors.Secondly,because the articles of association have a high degree of autonomy in the daily management of the company,including but not limited to the company’s external guarantee matters,we need to study the impact of different provisions of the articles of association.This paper mainly analyzes the effectiveness of the contract when the articles of association prohibit or do not stipulate the external guarantee and the company violates the provisions of the articles of association.As the qualification of external guarantee of the company is legal and does not transfer according to the provisions of the articles of association,the first two situations will not affect the effectiveness of the contract.For theviolation of the articles of association,the external guarantee mainly involves two situations: the amount of guarantee is greater than the amount of guarantee and the decision-making body is inconsistent.After a more comprehensive analysis,we can draw lessons from the provisions of the Supreme People’s Court on the loan interest rate in private lending,that is,the principle of distinction should be implemented,which is of course effective within the limit stipulated in the articles of association,and the part exceeding the provisions of the articles of association is determined by the subjective state of the shareholders’ meeting.Regarding the problem of dislocation of decision-making institutions,it should be insisted that shareholders(large)will be the company’s authority and enjoy the ultimate decision-making power.Finally,in the framework of analyzing the legal provisions and the regulations of the articles of association,this paper discusses from the two parties of the external guarantee contract as the starting point.As one of the parties to the contract,the interests of the transaction counterpart should be fully protected,but also bear the corresponding review obligations.Combined with the latest judicial cases,it further clarifies the review limits and scope of the counterpart.As the other party to the contract,because of the main legal representatives,directors and senior executives,the legal effect and liability of the ultra vires guarantee of the legal representatives,directors and senior executives are discussed.When the legal representative of the company constitutes the ultra vires guarantee,if the other party is in good faith,it is in line with the provisions of Article 50 of the contract law on representative by estoppel.At this time,the contract is valid and the company bears the corresponding responsibility.If the opposite party is malicious,because the law does not clearly stipulate the validity of the contract,this paper discusses the reference of the unauthorized agency rule.That is to say,it depends on the subjective attitude of the company.If it is confirmed,it is effective and should also bear the responsibility.If it is not confirmed,it is unfair to only assume the responsibility by the ultra vires representative if it is still applicable at this time.Therefore,according to Article 171,paragraph 4,of the general principles of civil law,it should bear the responsibility according to its own fault,etc.However,the ultra vires guarantee of directors and senior executives should be analyzed according to the specific situation of the company. |
