| With the increasing prosperity of the business economy,the company’s external guarantee has become an important part of modern business activities.For creditors and debtors,company guarantees are not only conducive to the debtor’s rapid fund-raising,but also conducive to guarantee the realization of the creditor’s rights and interests.However,the company’s external guarantee is different from the company’s general daily operations.If it is only decided and implemented by the company’s representative office,it may cause irreparable losses to the company and shareholders’ interests.In 1993,in accordance with Article 60,Paragraph 3 of the "Company Law",the company could not provide external guarantees.After the 2005 "Company Law" was amended,Article 16 stipulated that the company can provide external guarantees,but at the same time it also requires the company to pass the resolution of the internal agency before the external guarantees.This clause prevents the company representative from providing guarantees to others at will.To a certain extent,it protects the interests of the company and small and medium shareholders,and promotes the stability and development of commercial activities.On the other hand,this clause,as the main applicable clause for handling the company’s external guarantees in judicial trials,lacks legal consequences,which has caused a series of new problems.The Supreme People’s Court has successively issued the "Minutes of the National Civil and Commercial Trial Work Conference of the Courts" and the "Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the Civil Code of the People’s Republic of China" in response to issues such as external guarantees by companies,which largely corrected the previous Incorrect understanding of illegal guarantees in the court judgment process can help curb illegal guarantees,but there are still some problems that need to be solved urgently in the application process.According to current legislation and legal analysis,the scope of related guarantee objects should only include company shareholders and actual controllers,and directors cannot be included in this scope.In order to facilitate the counterparty to identify and review the company’s actual controller and the amount of guarantee,the scope of the company’s mandatory information disclosure should be appropriately expanded.It should be clarified that the counterparty review obligation also includes review of the company’s articles of association.When the company’s external guarantee is recorded in the articles of association as the resolution authority of the board of directors,and the actual resolution of the shareholders(general)meeting is also valid.When the counterparty is not in good faith,the company should be given the right to ratify the ultra vires acts of the legal representative.Only when the company does not ratify the ultra vires acts can it be confirmed that the company is not bound by the guarantee contract.If the company’s authority oversteps its authority or has a flawed authorization of the legal representative,it is deemed that the company is at fault for the invalidity of the guarantee contract,and the non-innocent counterpart can request the company to assume responsibility for negligence in contracting,but the principle of negligence should be applied. |
