Analysis Of Corporate Guarantee Regulation By The Minutes Of Civil And Commercial Trials

As an important supplement of financial institution guarantee,company guarantee is widely used in commercial practice of financing lending.There has always been a heated debate about the effectiveness of external guarantee in violation of article 16 of the Company Law in theoretical and practical circles.The effective and invalid theories hold different opinions,and the judicial judgment path is very different.The phenomenon of different results in the same case seriously affects the judicial credibility.The introduction of the Minutes of Civil and Commercial Trials clarifies the legal application path for the practice of the external guarantee,that is,the violation of Article 16 of the Company Law constitutes an unauthorized representative,and the validity of the contract is determined in accordance with the rules of unauthorized representative in the Contract Law.Although the path of adjudication established by the Minutes of Civil and Commercial Trials has become the mainstream theory in academic circles and has been confirmed by judicial interpretation documents,there are still some problems in understanding and application of it.This paper focus on the relevant provisions of the Minutes of Civil and Commercial Trials on company guarantee,deeply analyzes the application logic of organizational law behind it,and further refines and improves the judicial judgment rules under the path of overstepping authority representative on this basis.This thesis is composed of four chapters as follows:The first chapter analyzes the actual problems in the legislation and judicature of corporate guarantee,affirms the positive significance of the Minutes of Civil and Commercial Trials and puts forward the problems existing in its understanding and application.Through to the “company law” relevant provision combing and analysis of the court case due to the company law article 16 the lack of corresponding legal consequences of the judicial referee that provides guarantee for the company in violation of this decided the path differences exist,normative nature path,the path of distinction between inside and outside representation and limit three referees train of thought,The issue of diverse results for the same case is serious.The introduction of the Minutes of Civil and Commercial Trials unified the adjudication path,provided clear behavior guidance for the parties of corporate guarantee,and the concept of“protecting bona fides counterpart” was more comprehensive and appropriate in the balance of interests.But at the same time,the organizational logic of the Minutes of Civil and Commercial Trials on corporate guarantee regulation needs to be further clarified and followed,the identification rules of relative good faith shall be further specified,and the validity determination and liability assumption rules of security contracts should also be more rigorous and clear.Chapter two discusses the logic of organizational law in the Minutes of Civil and Commercial Trials,and clarifies the applicable relationship between article 16 of company Law and ultra vires representative system.Through the theoretical analysis of the nature of corporate law and the structure of corporate intention expression,it is found that the Minutes of Civil and Commercial Trials divides the company’s signing of external guarantee contract into two stages to regulate: first,the formation stage of internal guarantee intention of the company.Article 16 of the Company Law only aims to regulate the formation procedure of company will in the previous stage.The legal consequence of violating this provision is the defect of the validity of the resolution.Second,the company’s external expression stage.Resolution defects,namely,the lack of corporate intentions,are externally manifested as the legal representative enters into security contracts on behalf of the company in violation of the true intentions of the company.The ultra vire representative rules in Article 504 of the Civil Code sets up a bridge to communicate the internal and external legal relations of the company organization in corporate guarantee.The logic of organizational law in the Minutes of Civil and Commercial Trials is also reflected in the revision of relevant articles in the revised draft of Company Law.The third chapter analyzes and perfects the identification rules of the Minutes of Civil and Commercial Trials for bona fide counterparts of company guarantee.First of all,it affirms the position that the Minutes of Civil and Commercial Trials has the obligation to examine the counterpart.It is emphasized that the examination of the relative party to the guarantee resolution can effectively reduce the risk of corporate governance and correct the value idea that judicial efficiency is Paramount in corporate guarantee.Secondly,it demonstrates the necessity and legal basis of the counterpart’s examination obligation.On the one hand,considering the particularity of guarantee behavior,it is necessary to endue the relative party with the obligation of resolution review in order to respect the autonomy of the company.On the other hand,the relative party’s examination obligation originates from the legal effect of publicity and appearance jurisprudence.Finally,refine the identification standards of bona fide counterparts.Considering the creditor’s review ability and the need of objectification of judgment criteria,creditors only need to conduct formal review of security resolution to constitute good faith.The review includes two aspects: whether there are agency resolutions,and whether it meets the formal requirements of laws and articles of association.The fourth chapter analyzes and perfects the provisions of the Minutes of Civil and Commercial Trials on the validity and liability of the company’s ultra virial guarantee.On guarantee decided,the Civil Code article 504 unauthorized representative system is the effectiveness of belonging standard,can in effect on the provisions of the unauthorized agency apply,company can to ratification of unauthorized guarantee,practical cases shall be respectively determined on attribution and validity judgment.In terms of liability,when the effectiveness of the security contract cannot be attributed to the company,the company should not be held liable for compensation according to the provisions of judicial interpretation on the liability for invalidity of the contract,but should be analogously applied to the provisions on unauthorized agency,and the actor and the counterpart should be held liable according to their own faults.