Determination Of The Validity Of Non-associated Guarantees In Violation Of Article 16 Of The Company Law

The rapid development of the modern economy has given birth to the rise of company guarantees.However,with the increase in the number,company guarantee disputes are also emerging in endlessly,and new cases continue to emerge in practice.After the new "Company Law" was promulgated in 2005,Article 16 of the "Company Law" gave companies the freedom to provide external guarantees,but did not regulate the validity of guarantees made in violation of this article.As for related guarantees,the "Company Law" imposes more procedural restrictions and stricter regulations on it.However,there are more problems in the practice of non-associated guarantees with a higher degree of freedom.The issue of determining the validity of non-associated guarantees in violation of Article 16 of the "Company Law" has always been disputed between academic and practical circles.In our country’s academic theory and judicial practice,when judging the effectiveness of non-associated guarantees by companies in violation of Article 16 of the Company Law,there are different analysis paths and judgment methods.How to define the scope has deviations in understanding and similarities and differences in opinions.Even the judgment path and scale of the Supreme People’s Court in the practical world have also changed back and forth.In the process of determining the effectiveness of non-associated guarantees in violation of Article 16 of the "Company Law",the determination of the counterparty review obligation standard will play a role in determining the effectiveness of such cases and the resolution of disputes.The Civil Code and its related judicial interpretations that came into effect in 2021 require that when determining the effectiveness of non-related guarantees in violation of Article 16 of the Company Law,it is necessary to judge whether the counterparty is"good faith" based on whether the counterparty has fulfilled the obligation of reasonable review ".In view of this,this article hopes to focus on the existing case precedents and academic viewpoints,and try to explore the following questions: What is the path for judging the effectiveness of non-associated guarantees in Article 16 of the "Company Law"? Does the counterparty have the obligation to review? What is its legal basis? How to define the specific review obligation standard?The subject of this article is the determination of the validity of non-associated guarantees in violation of Article 16 of the "Company Law".The main text consists of three chapters:The first chapter is the origin of the problem,which mainly analyzes the evolution of judicial opinions and judicial precedents of the Supreme People’s Court on Article 16 of the "Company Law".The Supreme People’s Court,as the highest judicial organ in my country,is responsible for hearing various cases and formulating judicial interpretations.The relevant judicial interpretations,meeting minutes,and judgment opinions made by it have inevitably become the vane of the national academic and practical circles.However,when the Supreme People’s Court judges the effectiveness of the company’s non-associated guarantee in violation of Article 16 of the "Company Law",there are also completely different calibers and opinions.This chapter will combine the evolution of the views of the Supreme People’s Court and individual cases to summarize and categorize the views of the Supreme People’s Court on this issue.The second chapter summarizes and analyzes the disputes of Article 16 of the "Company Law" from the academic circles.The main controversy in the academic circles revolves around the legislative purpose of Article 16 of the "Company Law" and how to choose the analysis path for judging the validity of a guarantee contract that violates Article 16 of the "Company Law" for non-related guarantees.Discussed the analysis path of Article 16 of the "Company Law",discussed the analysis path of the mandatory provisions of Article 16 of the "Company Law" in combination with Article 52,Item 5 of the original "Contract Law",and finally chose the combination Article 16 of the "Company Law" and Article 50 of the original "Contract Law",Article 504 of the current Civil Code and Article 61,Paragraph 3 of the General Regulations of the Civil Code shall determine the validity of companies providing guarantees for others and their counterparts Whether it has a review obligation to analyze.The third chapter is to conduct legal proof,analysis of the source of facts,and standard determination of review obligations for the determination of the validity of non-associated guarantees and the counterparty review obligations in violation of Article 16 of the "Company Law.First,this chapter combines the latest judicial rules such as the Civil Code and relevant judicial interpretations to demonstrate the validity of non-associated guarantees in violation of Article 16 of the Company Law under the new judicial background.Secondly,the standard and irrationality of the categorized distinction between formal and substantive examinations were made;then the principle of reasonable examination obligations was established by comparing the experience of France and the United States;finally,the scope of examination obligations for counterparts of professional financial institutions in practice Preliminary determination was made with the standard.