On The Application Of Company’s External Guarantee Rules To Credit Enhancement Measures

Guarantee is a widely applicable transaction arrangement in commercial transactions.The subject legal persons,especially the company,who use this transaction arrangement account for the vast majority,and the guarantee provided by the company has the characteristics of high target amount and high degree of credit enhancement.However,the external guarantee provided by the company has great risks to the property rights and interests of the company and the interests of shareholders as participants.Before maintaining the transaction security,protecting the interests of creditors and protecting the interests of the company and shareholders,The company’s external guarantee system came into being to balance the protection of the two.Credit enhancement measures are a new type of people’s guarantee in practice.The main types include balance replenishment,liquidity support,regular repurchase,etc.the manifestations include contract,unilateral promise,etc.Gambling agreements embody credit enhancement measures such as regular or conditional review and balance supplement.Such agreements are the concentrated embodiment of the specific application of credit enhancement measures.Valuation adjustment agreements in equity investment transactions,also known as gambling agreements,are the concentrated embodiment of the specific application of credit enhancement measures,Due to its characteristics of guarantee,multi-party and property liability consequences,the nature of credit enhancement measures is different in judicial practice,There are the theory of the third party paying off,the theory of debt joining,the theory of independent contractual obligation and the theory of guarantee,and these understandings have different degrees of defects.The legal effects and the responsibilities of the parties vary greatly due to the different nature.The existing legal provisions,such as the provisions of the civil code and the interpretation of the guarantee system of the civil code,still have doubts about the nature and legal application of credit enhancement measures.Credit enhancement measures are highly similar to guarantee,but they are significantly different from guarantee in terms of content and scope.Compared with atypical material guarantee such as transfer guarantee,identifying the nature of credit enhancement measures as atypical guarantee is the current optimal solution.The company is an organization for the purpose of profit.Providing credit enhancement measures and undertaking property liability,and the consequences do not match its profit purpose,which is an abnormal operation;The company’s external guarantee system determines the balance between the protection of creditors and guarantee providers when legislating;According to the legal concept of responsibility,the credit enhancement measures provided by the company with property liability consequences should be decided by the group;The understanding of the guarantee stipulated in Article 16 of the company law,including atypical guarantee,matches the choice of legislative value,which is conducive to the maintenance of transaction security.