| Corporate guarantee is a commercial means to promote financing and improve operating efficiency.According to the relationship between the shareholders of the company and the counterpart of the guarantee,it can be divided into related guarantee and non-related guarantee.Reasonable and compliant guarantee can not only improve the problem of tight capital flow of enterprises,but also optimize the allocation of resources through external guarantee.However,illegal guarantee may infringe the rights and interests of other shareholders internally,reduce the company’s capital,and increase the pressure of capital flow and promote operational risks externally.The minutes of the meeting on civil and commercial adjudication of national courts(Fa [2019] No.254,hereinafter referred to as Nine Civil Minutes)emphasized that if a company guarantees a guaranty to a foreign party,the legal representative shall be authorized in accordance with the resolution authority and resolution procedure stipulated in the company’s articles of association,and made it clear that the non-bona fide contract of the secured creditor is invalid.For the issue of invalid guarantee contract to bear the liability for compensation only refer to the guaranty law and its judicial interpretation.After January 1,2021,the Guarantee Law and its judicial interpretations become invalid.Before the Civil Code came into effect in 2021,the overstepping of the legal representative and the non-bona fide counterpart were the two elements that made the company’s guarantee contract invalid,and the three main bodies that bear the legal liability for the invalidity of the guarantee contract were the overstepping legal representative,the company and the non-bona fide counterpart.After the Civil Code and the judicial interpretation of the guarantee system came into effect,the original statement that the company’s guarantee contract was invalid was changed to that the guarantee contract was not effective.However,according to the Civil Code and the relevant articles of the Civil Code on the legal interpretation of the guarantee system,there is still no unified judgment standard for how the guarantor and the counterpart to judge the liability according to the fault in judicial practice.At present,the Civil Code is just coming into effect,and there are not enough cases and practical experience for reference in the combination of legal articles and trial.This paper intends to study the liability of compensation when the company’s external guarantee contract does not take effect.By analogy the period of one year’s "Nine Civil Minutes to" Civil Code "effective case,analyze and explain the subject,legal basis and scope of the liability when the guarantee contract does not take effect.To this,this article adopts the method of case analysis found and summed up the current applicable to law and understand the problems in the judicial practice,to integrate relevant law by means of legal normative analysis,combining with the system interpretation,rule of direct interpretation methods of interpretation,purpose,on the basis of the focus in the study of this topic-legal liability of the company and the Non-bona fide counterparts when company external guarantee takes no effect.The biggest value of this paper is to the company law article 16 what is not provided legal consequence to try to fill,by combining the Nine Civil Minutes,the guarantee system of "Civil Code " and " Civil Code " related legal interpretation and other legal documents,discuss the external guaranty contract effectiveness,in order to solve in the practice of the company external guarantee which is non-effective.It has certain innovative value and practical significance. |
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