Research On The Legal Effect Of Company’s External Guarantee

The 2005 "Company Law" has detailed provisions on company guarantees.Although it attempts to resolve judicial disputes about company guarantees through a corporate governance model,it seems to be insufficient in practice.Theorists also have methods to determine the effectiveness of a company’s external guarantee.different opinions.Therefore,this article is case-oriented,through the analysis of the theoretical and practical viewpoints,to determine the way to determine the legal effect of the company’s external guarantees.This article is divided into four chapters.The first chapter points out the problem,that is,the issue of determining the effectiveness of a company’s external guarantee is controversial in the judicial and theoretical circles.The "Minutes of the National Court Civil and Commercial Trial Work Conference"(hereinafter referred to as " The"Minutes of the Nine Peoples Meeting")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"(hereinafter referred to as the "Guarantee Interpretation of the Civil Code")amended the trial of the company’s external guarantee Rules,but some of the guiding ideas still need to be discussed,and we urgently need to conduct in-depth research.The second chapter analyzes the judicial judgment status of the company’s external guarantee contract effectiveness.By sorting out the judgment cases of the Intermediate People’s Court to the Supreme People’s Court regarding the company’s external guarantees from 2015 to 2021,analyzing the contract validity judgments and the reasons for the judgments,and distilling the key issues that led to the court’s "different judgments in the same case" : On the one hand,The court has disputes regarding the determination of the nature of Article 16 of the "Company Law".On the other hand,The court has disagreements on the way to determine the validity of a company’s guarantee contract in violation of Article 16 of the Company Law,that is,whether it is directly determined whether the guarantee contract is valid only in accordance with Article 16 of the Company Law.The third chapter further discusses the validity determination path of the company’s external guarantee contract.After sorting out the three existing paths,it is found that Article 16 of the "Company Law" is an internal procedural mechanism to ensure the normal operation of the company.Therefore,the validity of the external guarantee contract cannot be directly determined according to this article.The "dichotomy" under the thinking of civil law is adopted.To examine Article 16 of the "Company Law" is to disregard the special organizational nature of the company law.Regarding the issue of the validity of a guarantee contract,the “ legal authority limitation theory” should be adopted to determine,that is,Article 16 of the Company Law restricts the representation of legal representatives,and Article 504 of the Civil Code becomes the judgment of the validity of a guarantee contract.According to the rules,the validity of the guarantee contract is judged by whether the counterparty of the transaction is "in good faith" when the contract is concluded.Among them,Article504 of the Civil Code does not clearly stipulate the effectiveness of the guarantee contract when the counterparty is "malicious".In this case,it should be solved by analogy with the rule of unauthorised agency.The fourth chapter further discusses the "good faith" standard of the counterparty,that is,the counterparty’s review obligation.Since Article 504 of the Civil Code judges the validity of the guarantee contract based on whether the counterparty of the transaction is "in good faith" when the contract is concluded,the "Minutes of the Nine Peoples Conference" clearly stipulates that whether the counterpart is "in good faith" should be determined by whether the counterparty performs the review obligation Off.Therefore,the review obligation of the counterparty is the key to judging the effectiveness of the guarantee contract.Prior to the release of the "Minutes of the Nine Peoples Meeting",there was considerable controversy over the review obligations of the counterparty in practice.After the "Minutes of the Nine Peoples Meeting" was released,Article 18 stipulated the review obligations of the counterparty of the transaction,and it is clear that the review is generally limited to the form Review.However,the provision that the counterparty does not need to review the company’s articles of association is not appropriate,because the company’s external guarantee resolution can only be made by first confirming that the resolution agency has the right to make resolutions in accordance with the company’s articles of association,and the form is flawless,and the subsequent transaction counterparty will further review and agree to the resolution.The number of people and whether the signatory personnel meet the requirements of the company’s articles of association is meaningful.The "Guarantee Interpretation of the Civil Code" is further improved on the basis of formal review,pointing out that the review obligation should be limited to "reasonable review".The criteria for reasonable review can be specifically determined by reviewing the resolution body,the content of the resolution,and the identity of directors or shareholders.