Research On The Review Obligation Of Counterparties In The Company’s External Guarantee

Taking the 2005 Company Law as the dividing point,My country’s legal system has gone from the initial complete denial of company guarantees to the later confirmation and corresponding provisions have been made for them.However,due to the lagging nature of legal provisions and the increasing number of corporate guarantee issues,legal provisions inevitably lag behind the reality and cannot be fully applied to some emerging issues.This has sparked a heated debate in the academic and practical fields regarding the issue of external guarantees.In this issue,the review obligation of the counterparty is an important point among the many controversial focuses.However,in my country’s legal system,there is no clear provision for the review obligation of the relative party,and the discussion on this issue in the theoretical community is divergent,which leads to different attitudes of courts towards this issue in judicial decisions.Based on this situation,there is an urgent need to provide a definitive and unified interpretation of the review obligation of the counterparty.If this practical problem can be effectively solved,it will not only play an important role in promoting the resolution of other issues in external guarantees,but also be conducive to balancing the interests of all parties involved in guarantees and unifying judicial decisions.This article takes the provisions of Article 16 of the current Company Law as the starting point,and summarizes the controversial viewpoints in the theoretical community in recent years.Analyzed the specific situation and shortcomings of the existing legislation,judicial interpretation and other relevant provisions,and explored the specific adjudication situation and internal mechanism under different adjudication paths by combining the relevant judicial cases in recent years,and found the following problems: First,the academic and practical circles have not yet reached consensus on the standards and contents of the review obligation.Second,the Company Law has obvious shortcomings in dealing with the review obligation of the counterpart.In addition,the Civil Code and relevant judicial interpretation are complex and difficult to form a system.Their application relationship is complex,and it is difficult to grasp their specific application,which leads to different adjudication paths and different adjudication results.Third,due to the lack of legal consequences,the determination of the effectiveness of ultra vires guarantees and the assumption of responsibilities by all parties are not clear.Given that the legal provisions regarding the obligation of review by the relative party are not yet clear,and in response to some of the issues arising from this,the following suggestions are given: First,clarify the standards and content of the review.Require the counterparty to undertake the obligation of review and include the company’s articles of association in the scope of review.Second,clarify the rules of judicial adjudication.Under the guidance of Article 16 of the Company Law and Articles 61 and 504 of the Civil Code,a unified judicial decision-making path is adopted,with the failure to fulfill the obligation of review as the key to determining good faith,thus enabling the burden of proof of the other party to be fulfilled.Third,specify the legal consequences of the counterparty’s failure to fulfill their review obligations in the guarantee contract.By applying the handling rules of unauthorized agency by analogy,companies are granted the right to recognize contracts,based on complying with the original intention of institutional construction and meeting the autonomy of private law.Establish a stable set of handling rules to provide reference for judicial decisions.