On The Company's External Guarantee Capacity

The corporate external guaranty is a common phenomenon in our practice, but it will lead to many problems. Because guaranty with or without reward will make the corporation faced with a lot of risk. Once the corporation performs guaranteed obligations, it will bring extreme financial pressure to the corporation, influence corporate existing, and harm the benefits of shareholders and creditors. Especially, if it forms the chains of guaranty among corporations, many corporations will be resulted to go bankrupt. The corporate external guaranty is restricted in other countries and areas, but Chinese corporation law hasn't restrictive prescription on the corporate external guaranty. Because of the problems in practice and the lack of legislation on corporate guaranty, it is necessary and of a significant sense to study the main legal issues concerning the corporate external guaranty.The article, on the topic of limiting the legal capacity of the corporate external guaranty and adopting the approach of comparative law, law interpretation, analyzes the legal theory concerning limiting the corporate external guaranty, introduces the foreign legislations by a careful comparative study, and discusses the reasonableness of guaranty each other in enterprise group. Based on the above discussion, considering our legislative status quo, the author gives some suggestions on legislative designs of the corporate external guaranty.This paper is divided into five parts besides a preface.Part I: This part, launching around some theoretical questions of the corporate legal capacity and passing the observation with historical development on the relation of the corporate legal capacity and purpose range, summarizes the expanding trend of the corporate general legal capacity, analyzes the purpose and meaning of limiting some powers and functions of the corporation through setting up the special legal capacity system, and does theory foreshadowing for the view of proposing limiting the external guaranteed capacity of the general corporationPart II: This part, combining the consequence of the corporate externalguaranty, goes on deep legal principle analyze on limiting the external guaranteed capacity of the general corporation mainly from the essences of corporation and balanced function of corporation law.Part III: This part compares and appraises the relevant legislations of other countries and areas at first, especially observes the legislations of the Anglo-American law system and Taiwan of our country, and then draw the conclusion that our country should adopt the legislative mode of "the principle is forbidden, the exception is permitted".Part IV: On the basis of the particularity that the enterprise group pursues the effect of large-scale production, this part carries on deep research to the rationality and different kinds of guaranty each other in enterprise group, and proposes the necessity of controlling the risk.Part V: This part, proceeding with current relevant legal provisions, examines the lack of our country's legislation, and does the concrete legislative design to the relevant problem.