The Duty Of Examination Of The Opposite Party In The Company Guarantee

Starting from the current laws and regulations of the relative person’s review obligation,this paper leads to the diversified problems of the relative person’s review obligation.Diversification is not only reflected in the existence of the duty of review,but also in the different standards of the duty of review.Through normative analysis,there is a phenomenon of conceptual confusion in the dispute over the nature of norms.This paper holds that Article 16 of the company law is a compulsory norm.The compulsion of company law in guarantee matters comes from the significance of company guarantee matters.The profit tendency of market subject also needs the intervention of company law.On the premise of respecting the autonomy of will,Article 16 of the company law plays the role of bottom line regulation.On the basis of normative analysis,this paper further uses interest measurement and value judgment to demonstrate the rationality of review obligation.The duty of examination in the effective argumentation of the theory of interest balance can realize the balance of interests,but it also has the disadvantages of differentiation.There is no clear distinction between the existence of overhead review obligations or that the review standard is too strict.In terms of value judgment,externalism can play a complementary role in the case of failure of will autonomy,which is conducive to transaction safety and efficiency.There is a dispute between formal examination and substantive examination in the standard of examination obligation,and the realization of substantive examination requires direct dialogue between the counterpart and shareholders.Substantive review exaggerates the regulatory role of the company law and directly interferes in the dispute between the board of shareholders and the board of directors.Substantive review has compressed the space of autonomy of will within the company and failed to give consideration to transaction efficiency and transaction safety.The fuzziness of formal review and substantive review results from the insufficient distinction between duty of care and duty of review.The duty of care is universal,while the duty of review is statutory.The duty of examination limits the object of examination to the articles of association and company resolution,and the duty of care supplements the duty of examination.The establishment of the nature of the law of review obligation limits the object of review and helps to further improve the review standard of the articles of association and resolutions.Violation of the mandatory norms of the duty of review does not directly lead to the invalidity of the guarantee contract,which depends on whether the guarantee company recognizes it or not.In the responsibility distribution of invalid guarantee contract,we should pay attention to the ownership of contract effectiveness.Contract invalidity means that it is invalid to the company and may be effective to the actor.