On The Legal System Of The Company 's External Guarantee

The guaranty system of company is regulated in the sixtieth paragraph of the1993version of company law, security law, explanation of security law,the sixteenthparagraph of the2005version of company law and other laws and regulationsreleased by China Securities Regulatory Commission. But because the provisions arein conflict with each other and the conception of the provisions are too simple so thatexist tremendous controversy both in the theoretical circles and judicial practicecircles and also exist many contradictious judgment about nature of external guarantycontract.The theme of this essay are about the capability and the nature of externalguaranty contract.In the first paragraph,author starts with the value of external guaranty. On oneside, external guaranty will help to the development of the corporation itself and thesociety and reflects the thought of company autonomy; on the other side, the legalregulation to external guaranty will also help to the economic benefits ofcompany,shareholders,creditors and other stakeholders of the company.As with theexternal guaranty, only by company autonomy is not enough, the legal regulations arenecessary.There are a lot of shortcomings and defect in the regulations oflaw,therefore,how to improve the regulations of laws and make a balance betweencompany autonomy and law regulation as well as confirm the criteria of effectivenessof external guaranty contract become a problem that deserves research.The first part of this paper carried out a detailed analysis about the value both ofthe company autonomy and legal regulations to external guaranty system.On the basisof the different opinions of different countries in common law system and civil lawsystem about the confirmation of external guaranty capability of the company, authoranalyzed various laws and regulations of external guaranty capability, including1993version of the company law, explanation of security law,the sixteenth paragraph of the2005version of company law and other laws and regulations released by ChinaSecurities Regulatory Commission, pointing out the shortcomings and defect which result in the confusion in judicial practice.Based on the above analysis, author comesto the conclusion that the laws fully ensure the external guaranty capability of thecompany with the restriction to subject, target and procedures by law.In the second part, author analyzed the validity of external guaranty contractwhich is the most important problem in the system of company external guaranty byway of analyzing the judicial practice and theory. Author analyzed the Chuangzhiguaranty case,Tuoyu guaranty case, Huilian guaranty case and other similar guarantycases, with a hope to find out the opinion of the court’s opinions in the judicialpractice so as to lay a theoretical and practical foundation for the third part of theessay which confirms the judgment standard of the validity of the external guarantycontract of company.The third part of this article from the characteristics of norm of law,theattributions of articles of the company and the examination duty of the thirdperson,equity and efficiency in external guaranty to undertake the analysis,pointingout that the sixteenth paragraph of the2005version of company law is comprehensivenorms with mandatory norms and random norms.When judging the validity ofcompany external guaranty contract, differential treatment is necessary with theexamination duty of third person, the equity and efficiency in the guaranty contractand other factors in consideration in order to realize the case justness.