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Leagel Research On Company's Guarantees For Shareholders

Posted on:2011-11-18Degree:MasterType:Thesis
Country:ChinaCandidate:H K MaFull Text:PDF
GTID:2166360305482354Subject:Law
Abstract/Summary:PDF Full Text Request
In this paper, the case of loan dispute between Guangcai group corporation and Export-Import Bank of China which I research is a case triggered by connected-guarantee. This case embodies the the differences associated with guarantees between academic and judicial practice activities.From the legal theory and legal requirements in terms,this paper will combine the case of the truth,and use of legal interpretation, comparative law analysis and other methods,to research different views and come to the conclusion. I hope to provide useful help to the similar cases。Full-text is divided into six parts:Part I, Introduction.First,this section introduces the basic situation of the case。And then, refine the focus of the dispute in the cases. There are three focus in this case : the guarantee eligibility , the main to deside guarantee and treatment after guarantee contrast null.Then point out that the purposes of this article and how to write.The purpose of this writing is to analysis of cases controversial issues of this case ,and draw a conclusion, in order to solve this type of case.The second part, Guarantee eligibility.The view was expressed that the Article 60, paragraph 3 of old "Company Law" limits the ability of the company's external guarantee. Therefore, Company can not provide guarantees for shareholders.。In my opinion, this Article is only for duty of loyalty of right director, manager,restrict on directors, manager of the authority, and have no limit to the ability to guarantee the interests of shareholders. The third part, The main to deside guarantee. Academic and judicial practice activities have argue on if the Board of Directors have the right to guarantee for the shareholders. Some people think that the board have the right, but some suggested that the board has not. Solution of this problem lies in how to understand the old "Company Law" Article 60, paragraph 3. The author believes that the old "Company Law" Article 60, paragraph 3, is only to directors, without involving the board of directors, The Board is also allowed to provide guarantee for shareholdersPart IV, Treatment after guarantee contrast null.When guarantee contract was invalidated, it must go to define fault and responsibility of the parties to the contract In the judicial practice, some court held that even if the creditor knows the debtor is the shareholders of guarantor, creditors can not be found guilty. But there are also courts held that if the creditor knew or should have known if the debtor and the guarantor have investment relations, it should bear the responsibility for the guarantee contract null and void. The author also believes that a creditor should review reasonably into the obligations of the debtor and the guarantor to find whether there is investor relations.Part V, Process the case on the perspective of the new "Company Law". The new "Company Law" develops new rules for guarantee for the company's shareholders. It is clear that company has legal capacity for external guarantee. And,if guarantee for shareholders or actual controllers ,it must be approved by shareholders or the shareholders of General Assembly resolutions and voting procedures. In the new "Company Law", the academic community are still different at the effectiveness of the decision to guarantee for shareholders or actual controllers made by the board of directors. Some scholars believe that the new "Company Law" Article 16 is against norms of the ban norms, so the decision made by the board is still valid. However, I believe, the decision made by the board shoud be defined as invalid,because this is more in line with the spirit of corporate law, as well as better protection of companies, medium and small shareholders and the interests of creditors. ,Part VI, An extension of case studies. This section is a complementary on the above case analysis.。First introduces the concepts of connected guarantee and legal regulation to the connected guarantee. On the basis of this, combined with the new "Company Law", "Securities Law" and relevant rules of china's securities regulatory commission,I try to construct the entry into force of conneted guarantee. Finally, base on the conclusions and theoretical knowledge, I put forward some suggestions for commercial banks to be on guard against risk of loan guarantees...
Keywords/Search Tags:Guarantees provided by company, Related-party transactions, Guarantee eligibility, the main to made decision
PDF Full Text Request
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