Analysis Of The Effectiveness Of One-person Company’s Guarantee For Shareholders

Since 2009,the issue of one-person companies guaranteeing shareholders has been discussed,and there have always been many differences on the understanding and application of Article 16 of the Company Law for one-person companies,including misunderstandings of Article 16 of the Company Law.Since the relevant legal provisions are still in use,it is of great significance to return to the original intention of Article 16 of the Company Law and analyze the validity of the one-person company’s guarantee for shareholders systematically.A judicial interpretation clause is not enough to solve all theoretical problems,not to mention that with the development of practice With the revision trend of the relaxation of restrictions on one-person companies in the Company Law,there will be more and more problems such as substantive one-person companies and penetration avoidance of voting.This paper is mainly divided into three parts.The first part summarizes the main viewpoints of theories and judicial decisions by reading literature and retrieving relevant cases.From a theoretical point of view,the existence of negation theory,legislative loophole theory,and restrictive permission theory is not the biggest difference in theory,because affirmation theory has gradually become the mainstream view in recent years,but the biggest difference lies within affirmation theory.Judging from the judicial judgment,most of the courts have combined various viewpoints of affirmation when hearing the case of a one-person company guaranteeing a shareholder.The court mainly proceeded from the normative purpose of Article 16 of the "Company Law",and demonstrated that the article is to protect the interests of the company and minority shareholders from being infringed by major shareholders or controlling shareholders,rather than prohibiting guarantees.Secondly,the court held that the sole shareholder of a one-person company represents the company and the will of the shareholders,and as the owner,performs all the duties of the shareholders’ meeting of the limited liability company,and can make a decision on guarantee,that is,there is no need to mechanically apply the procedure of "resolved by the shareholders’ meeting".However,these arguments are not systematic and complete,and there is a misunderstanding of Article 16 of the "Company Law".The second part is the focus of this paper: it systematically discusses the eligibility and legitimacy of one-person company’s guarantee for shareholders.This article also recognizes the one-person company as a shareholder guarantee.Firstly,the one-person company has the capacity for civil rights and conduct to provide related guarantees,and is not restricted by law,nor should there be any difference in capacity compared with ordinary companies.Secondly,judging from the procedural documents of the revision of the Company Law,the purpose of Article 16 is to protect the interests of the minority shareholders of the company.Although it does not pursue the protection of the interests of the creditors of the company,it has produced the same effect in practice.Returning to the essence of company law as an organic law,the content of Article 16 is actually the provisions on the procedures for the distribution and exercise of rights within the company,and the "legal authority limitation theory" and the normative debate are all misreading of Article 16.Therefore,the consequence of making a resolution in violation of Article 16 of a one-person company is firstly the result of the company law itself--the resolution can be revoked.At the same time,there are procedural flaws and Article 10 of the Judicial Interpretation of the Guarantee System to prevent the company’s shareholders from maliciously rescinding the resolution.Of course,the guarantee resolution of a one-person company inevitably has externalities and is closely related to an external third party.The will of the company and the will of the shareholders must be strictly distinguished,and the will of the shareholders should be raised to the will of the company in accordance with the requirements of the Company Law to regulate one-person corporate governance.The third part is the perfect suggestion of one-person company’s guarantee system for shareholders.This article discusses in accordance with the logic of prevention in advance,control in the event,and relief after the event.Firstly,we need to improve the one-person corporate governance structure and establish a guarantee registration and information disclosure system.Secondly,qualified creditors can request the one-person company to pay in advance or provide corresponding guarantees in accordance with the system of company merger and reduction of registered capital;they can also learn from the spirit of the principle of equitable subordination,and deal with the relevant creditor’s rights after the inferiority.Finally,creditors can choose to protect their legitimate rights and interests through legal personality denial,revocation or subrogation according to specific circumstances.