Recognition Of The Effectiveness Of Corporate Guarantees

The company’s external guarantee is undoubtedly a "double-edged sword" in the context of market economy,in terms of enterprise development and capital financing,the company’s external guarantee can play a good role in promoting and increasing the credit function,but its potential risks are also self-explanatory,the company’s legal representative violates the legal provisions of the external guarantee will not only damage other small and medium shareholders At the same time,the "expensive" subject matter will often take up too much judicial resources after the litigation process.Unlike the 1993 Company Law,which strictly restricted the path of company’s external guarantee based on special economic policies,the 2005 Company Law,while liberalizing external guarantee,also took note of the risks associated with company’s guarantee and added provisions regulating company’s external guarantee on this basis,i.e.the provisions of the current Company Law Article 16.This article has a total of three articles on the company guarantee to make restrictions,to a certain extent to protect the rights and interests of shareholders,to prevent the risk of guarantee and also to promote the security of the transaction,some scholars believe that this amendment systematically summarizes the last decade of the last century,the development of China’s corporate system,especially the law on the company’s ability to guarantee a series of provisions,the company engaged in the conduct of the guarantee to do a more complete regulation.However,whether in the practical or theoretical circles,the debate on the article has never stopped.One of the most controversial points is that Article 16 of the Company Law does not clarify the legal consequences of the violation of this article,that is,the legal representative of the company in violation of this article to provide external guarantees,the validity of the guarantee agreement? In the judicial decision,there are some people who rule that the guarantee agreement is valid and some people who rule that the guarantee agreement is invalid,and there is the phenomenon of different judgments in the same case,which will undoubtedly seriously damage the judicial authority,and behind this phenomenon mainly highlights three issues,the identification of the opposite party in good faith and the issue of the opposite party’s obligation to review.Therefore,in this paper,we will try to put forward some opinions on this issue based on the analysis of typical cases summarized in the judgment documents.The first part is an introduction.This part introduces the significance of the study on the system of company’s external guarantee and the current status of domestic and foreign research in this field.In addition,it introduces the main research methods used in this paper,summarizes many theoretical problems of the external guarantee system of companies in China,and finally summarizes the innovations and shortcomings of this paper.The second part is the analysis of the case and the focus of the arguments.This section introduces the fundamental information and the gist of the decision of two typical cases,namely,the contract dispute between Jilin Liuhe Rural Commercial Bank Co.and Yiyang Group Co,Ltd.,Jiangsu Yinda Technology Co.,Ltd.and Sichuan Yibin Russia and Europe Engineering Development Co.,Ltd.(hereinafter referred to as CNBM v.Jiangsu Yinda),and summarized the controversial focus of the case by comparing the difference of the decision of different trial levels and the difference of the decision between the two cases.The third part is a jurisprudential analysis of the series of issues related to the external guarantee system of the company,through the jurisprudential analysis of the controversial focus of "Liuhe Agricultural and Commercial Bank v.Yiyang Company" and "CNBM v.Jiangsu Yinda Case",with the help of China Judicial Documents Network and other network databases to By searching the judicial practice cases related to Article 16 of the Company Law by means of keyword search,we summarized the main controversial points and conducted an in-depth analysis of the controversial points based on such cases.The fourth part is the case study revelation,through the case dispute focus analysis and jurisprudence analysis,which leads to the relevant revelation about the path of adjudication on the regulation of the company’s external guarantee,the burden of proof of the "good faith" element of the relator,and the duty of review of the relator,based on the analysis of the case search,and then put forward the corresponding improvement suggestions in a targeted manner.