Study On The Examination Obligation Of Counterpart In External Guarantee Of Company

In the predicament of corporate guarantee system,the obligation of relative party examination is the "optimal solution" which is obtained from the consideration of various interests.However,many aspects of it have not yet reached a conclusion,such as the rationality of existence,identification standards,review content.Starting from the empirical and jurisprudential research,this paper analyzes the specific content of the counterpart’s examination obligation and tries to construct a feasible identification rule.This paper sorts out the provisions on external guarantee since the revision of company Law and introduces the different views in academic circles and the different attitudes of courts in practice.From commercial behavior characteristics,presumption of law theory and the perspective of interests balance this paper expounds the necessity of the other party to review the obligation.By analyzing the advantages,disadvantages and feasibility of formal review and substantive review,"flexible review standard" is put forward.It requires the counterpart to do the degree of examination corresponding to the objective factors such as their identity ability.In addition,from the guarantee company is listed,is the related guarantee and the examination ability of the relative party,the case analysis method is used to illustrate.In terms of the content of the review,the articles of association and resolutions of the company should be the objects of review.Under certain circumstances,based on the special provisions of guarantee amount of listed companies,audit reports and representative identity documents of the company need to be examined.When the counterpart fails to fulfill the reasonable obligation of review,it is slightly inappropriate to directly judge the guarantee contract as invalid contract.In this case,it is more advantageous to apply the "unauthorized representative" method.This entrusts the company with the right of ratification,and the company makes arrangements according to its own interests,which not only accords with the original intention of system construction,but also satisfies the legal principle of private law autonomy.When the company does not ratify the contract,the loss of the other party shall be shared by the actor and the other party according to their respective fault degrees.It can be judged that the representative bears more responsibility while the counterpart bears less.Finally,some suggestions on the system construction of the relative party examination obligation are put forward.For example,directors,managers and other senior management personnel should be included in the scope of related guarantee;Clarify the provisions of the resolution authority.It is expected that these researches can be beneficial to legal practice.