Legal Study On Company's External Guarantee

With the further development of China's market economy and the improvement of the legal society, our attitude to the company's external guarantee changes from limiting into approving. External guarantee may promote the credit financing of the company, increase business opportunities and to bring more benefits. Meanwhile, the external guarantee as a kind of debt may increase the risk of operating company, damage the interests of shareholders and creditors. Balance, the legislation should admit the company has the power to providing guarantee and prevent potential acts of the company's external security risks. This paper adopts the theory with practice and comparative analysis method to research the company's external guarantee system.The first chapter theoretically classifies the different types of external guarantee , analyzes and references the generally guarantee mode and legislative cases , realizes that allowing the external guarantee power of company is the trend of the world, and then combine the evolution of the guarantee system, make sure that the current Company Law of China affirming the company has the power to provide external guarantee, increasing the company's autonomy space of external guarantee, expanding the scope of external guarantee, and giving the company's external guarantee more procedural specifications.The second chapter compares our country's guarantee decision-making procedure standard as well as the Anglo-American countries'substantive judgment standard. Although our country's standard distinguishes the general guarantee and the special guarantee, gives them different guarantee procedures. To a certain extent, this standard has regulated the illegal activities in the company's external guarantee, but in practice there are still many problems, such as the Company Law can easily be circumvented. Our country should adopt the essence of Anglo-American law on the substantive judgment standard.The third chapter analyzes the problems arising in practice. The provisions of the Company Law on the external guarantee are excessive principle, that produce a number of issues to be discussed and defined in practice , including: Whether the guarantee stipulation of articles of incorporation can constraint the third party? Articles of incorporation prohibits external guarantee, but General meeting of shareholders or board of directors signs a guarantee contract, how to identify the efficacy? Without authorization, director or senior management instead of General meeting of shareholders or board of directors signs a guarantee contract, how to identify the efficacy? Violates the institution stipulated in the articles of incorporation to make the guarantee resolution, how to identify the guarantee contract's efficacy, etc. in order to combine theory and practice of these analyzed and discussed. This article analyzes and discusses these issues basing on the combination of theory and practice...