Studies On Creditors’ Examination Duty In The Company’s External Guarantee

Although the new Company Law determines the scope and procedure of company guarantee,it is still abstract in practice and does not play the expected adjustment role to guarantee in practice.Article 16 of the Companies Act remains controversial,and courts have different views on the peer review obligation.In 2006,the Supreme Law argued in the loan guarantee case of Guang Cai Group that the relative person had the duty to examine,and in the case of the guarantee contract of Chuang Zhi Company in 2008,the Supreme Law again claimed that the relative person had the duty to examine in the company’s external guarantee.But in a 2011 communique issued by the Beijing Higher People’s Court,the law was reversed The view that the relative person’s duty to review,the constitution is not within the scope of the relative person’s review.The judgments of the courts which are contrary to their opinions have not established a stable basis,and the relative person’s duty to examine has caused confusion from all walks of life.In the long run,it will undermine our judicial credibility and hinder the construction of socialist legal system.Therefore,it is realistic and necessary to study the relative person’s duty to examine in depth.There are different opinions as to whether the relative person has the duty to examine.Extraterritorial legislation also contains provisions on the duty of peer review.However,in order to reduce the risk of external guarantees,taking into account other relevant factors,most of the extraterritorial States,while recognizing the external guarantee capacity of companies,Several countries impose certain constraints on them.However,the duty to review remains one of the powers of the counterpart and a universally recognized legal phenomenon outside the country.In practice,because the relevant legal provisions are not clear,disputes are increasing day by day,which also infringes the legitimate rights and interests of the parties,and also causes the company guarantee cases to produce different trial paths in judicial practice.To promote the development of economic activities,only on the issue of guarantees on paper,the existing problems will eventually not be solved.From the basic principles of the company’s external guarantee system,based on the relevant legal basis of our country,from the source of the company’s external guarantee power,this paper deeply analyzes the basic connotation of the relative person’s examination obligation and the development situation in China and abroad.Further combing the relative person review obligation in the academic positive and negative,substantive and formal review of the dispute,as well as the relevant legislative situation and judicial practice differences.The article carries on the thorough research to the examination duty standard,emphatically discusses the examination duty is to follow the standard.Because of the different forms of the company,the differences in governance structure and the choice of the main body of interest protection in the external guarantee Different,to the relative person’s examination duty scope has the big influence,therefore the author in the previous discussion foundation,in view of the listed company and the limited company in the organization structure,the benefit protection main body choice difference,the relative person examination duty should adopt the different standard,should have the higher form examination standard to the listed company’s counterpart.Finally,after determining the scope of the relative person’s review,the legal consequences of the relative person’s failure to fulfill the duty of review should not be generalized.