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

The demand for large-scale capital revitalization and financing in modern market economy communication has driven the prosperity of corporate guarantee business,and the attitude of corporate guarantee legislation and judicial system has gradually changed from the early absolute prohibition to permission.Nowadays,there are frequent disputes about the company’s guarantee business in judicial practice,mainly because the chaos of the company’s ultra vires guarantee cannot be effectively dealt with,which has become a stubborn disease to be solved urgently in the company’s development and judicial practice.As far as the practical basis is concerned,for example,Article 16 of the Company Law only puts forward the resolution subject,resolution procedure and the resolution right given to the organization by the company’s articles of association,and does not mention the legal consequences of the company’s guarantee system.As an important breakthrough to judge the effectiveness of the guarantee contract,the creditor’s review obligation,that is,the counterpart’s review obligation,has been pushed to the focus of controversy.By combing the relevant legislative documents in China,including Article16 of the Company Law,Article 504 of the Civil Code and Article 7 of the Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the Civil Code of People’s Republic of China(PRC)(hereinafter referred to as the Interpretation of the Guarantee System of the Civil Code),it is found that the review obligation of the counterpart is only inferred from the above documents,and it is not given the review obligation by legislation,and the standard and scope of the review obligation of the counterpart are even unknown.In order to fundamentally solve the dispute over the effectiveness of company guarantee,it is naturally necessary to explore the review obligation of the counterpart.Therefore,this paper tries to deeply analyze the problems existing in the legislation and judicature of the private party’s review obligation from the multi-dimensional paths of legal basis,legislative system and typical cases,and through the comparative analysis of the relevant legislative systems in Britain,the United States,Germany and other foreign countries,based on the current situation and focus of China’s company guarantee activities,provides theoretical justification and concrete system construction for the establishment of the private party’s review obligation,and provides a clear institutional basis for judicial judgment.The first chapter is the introduction.This chapter briefly expounds the background,significance,research status at home and abroad,research methods and innovation points of the topic of private party’s review obligation in company guarantee,and summarizes the problems and focus of private party’s review obligation,which leads to the following theoretical discussion and solutions.The second chapter is the theoretical analysis of the review obligation of the counterpart in the company’s external guarantee.This chapter sorts out the focus of corporate guarantee activities and the theoretical disputes about the obligation of private party review,and puts forward the legal basis of the obligation of private party review and the necessity of its performance,which provides theoretical support for the following analysis and problem solving.The third chapter is the legislative provisions and analysis of the relative party’s review obligation in the company’s external guarantee.This chapter combs the legislative evolution of the review obligation of the counterpart in the company guarantee in the way of historical research,and sorts out the defects of the review obligation of the counterpart in China’s legislation,including the unclear review obligation of the counterpart,the unclear scope of the review obligation of the counterpart,and the unclear legal consequences of the counterpart’s failure to fulfill the review obligation.The fourth chapter is the judicial precedent and dilemma analysis of the private party’s review obligation in the company’s external guarantee.This chapter summarizes the current situation of judicial practice of the private party’s review obligation by studying a large number of typical judicial cases,analyzes and summarizes the main judicial judgment paths applicable to the dispute resolution of the private party’s review obligation at present,and then puts forward the difficulties in hearing such cases in judicial practice.The fifth chapter is the comparative analysis of the legislative regulation of the private party’s review obligation in the company’s external guarantee.Based on the analysis of the overseas legislative models of the private party’s review obligation in company guarantee and the legislative models in Taiwan Province and Macau,this paper puts forward some useful legislative enlightenment to improve the private party’s review obligation for reference.The sixth chapter is the way to improve the inspection obligation of the counterpart in the company’s external guarantee.In this chapter,aiming at the problems of the private party’s review obligation mentioned above,the author puts forward the corresponding improvement paths one by one from the aspects of legislation and company system optimization,so as to enrich the content of the private party’s review obligation legislation and clarify the judicial judgment rules of the private party’s review obligation,aiming at providing ideas for the improvement of China’s legislation and providing reference for the path selection of judicial judgment.