Research On The Legal Problems Of The Company Guaranteed VAM Agreement

In the process of operation,the company will involve many stakeholders,such as company,shareholders,external creditors,and so on.Different stakeholders will have different interest demands.In practice,the emergence of new trading patterns may upset the balance of stakeholders.In the field of company investment and financing,there is great controversy over the new transaction mode of company guarantee against VAM agreement in the judicial adjudication,and the court does not have uniform reasoning;there is no relevant law or regulation to regulate this transaction at present;the research on this transaction is too short and shallow in depth in the academic circles,the problem of company guarantee against VAM agreement can not be solved fundamentally,and there are difficulties in the application of law.This paper focuses on the issues such as the standards for determining the effectiveness of company guarantee against VAM agreement,the procedures for performing such agreement and the assumption of company liability.First of all,the paper discusses the standards for determining the effectiveness of the company guarantee against VAM agreement.The current judicial judgment has blurred the boundary between the effectiveness and the performance.The capital maintenance principle is aimed at preventing the unreasonable capital outflow of enterprises,and is a problem to be considered at the stage of contract performance.The validity of a company’s guarantee only needs to be examined at the stage when the company signs the guarantee agreement,and shall be judged by whether the investor is in good faith when the guarantee agreement is signed,in the form of whether the investor has fulfilled the obligation of reasonable form examination for the company’s resolution.In addition,if the company’s non-affiliated shareholders holding more than two thirds of the voting rights sign their consent to the VAM agreement(in which the company’s guarantee clause is stipulated)or the independent guarantee agreement,the bona fide counterpart may be presumed.Secondly,focusing on the procedures of the performance of the guarantee to VAM agreement,clarify the way the company undertakes the guarantee responsibility and the judgment standard.In fact,when a company fulfills the guarantee liability,it provides the shareholders or the actual controller with funds for equity repurchase or cash compensation,assumes the obligation of monetary payment,and may be deemed as special profit distribution to the shareholders or the actual controller of the company.The performance of the guarantee liability of the company shall be subject to the constraint of the capital maintenance principle of the company.There are legal loopholes in the performance of the guarantee and VAM agreement of the company,and the performance constraint rules of the Jiumin Minutes shall be applied by analogy,and shall be perfected according to the specific circumstances.The guarantee liability of the company may be performed in phases according to the company’s capital situation.If the company is unable to perform the monetary debt for a short time due to violation of the capital maintenance principle in the performance process,it shall bear the statutory liability for breach of contract and the agreed liability for breach of contract.Finally,this paper puts forward some suggestions on the application of law,and suggests that the judicatory should unify the criterion of the validity of the guarantee against VAM agreement,recognize the boundary of the validity of the guarantee and the performance of the guarantee.The validity of company guarantee shall be comprehensively judged in accordance with Article 16 of the Company Law,Article504 of the Civil Code and Article 7 of the Interpretation of the Supreme People’s Court on the Application of the Guarantee System in the Civil Code of the People’s Republic of China.With regard to the guarantee performance procedures,if the company has distributable profits and satisfies the conditions for profit distribution by means of ex post regulation,it is suggested that the judicial judgment rule that the investor may be compensated in the absence of a dividend resolution if the major shareholder abuses its right to not convene a meeting or pass a resolution to avoid the performance of guarantee liability.At the legislative level,companies may be required to preconsider and pass a bill on the distribution of profits before entering into a guarantee against betting agreement,if preventive measures are adopted.When signing the guarantee clause,the company shall simultaneously issue the resolution of the shareholders’ meeting deliberating and approving the "guarantee matters of the company" and "profit pre-distribution matters of the company",the net asset report of the company at that time and the opinions of the auditor on the net asset report of the company.When a dispute over a guarantee vs.VAM agreement of a company is brought before a court,instead of making a judgment that "the investor shall file a new lawsuit for performance when the company is profitable",the court shall rule in accordance with the actual circumstances on whether it is the company’s obligation to perform the guarantee liability.Where both parties have brought a lawsuit before a court due to a guarantee issue of the company,and the company is unable to perform the guarantee liability in a one-off manner at the time of court ruling,the court may rule that the company shall perform the guarantee liability in phases based on the company’s business status,and shall pay default penalty for deferred performance of debts.With regard to the interests of small shareholders and creditors of a company,the right to know of the shareholders and external creditors of the company shall be fully protected,the scope of information disclosure of non-listed companies shall be expanded,and the disclosure of the matters in the guarantee and VAM agreement of the company shall be standardized;and the compensation requirements for the objects that cause impact on the ultra vires guarantee of the company shall be increased.