Research On The Effect Of Company Guarantee Contract

As an important content of rights guarantee right ability is the company legalperson with independent behavior important embodiment. And is also an importantmeans of competition in the market. At present, the financing difficulty of small andmedium-sized enterprises is a prominent problem in the economic development ofChina reality. The development of demand for funds can not be brought to avoid linkis the guarantee. There is important significance to establish and perfect the guaranteelegal system to protect the company and the company and the interests ofshareholders and creditors and even the whole social economic development. Beforethe implementation of the new "company law", academic discussion on companyguarantee more focused on whether the company rights including the ability toguarantee ability, as well as the theory and practice of dispute provisions of the old"company law" and relevant laws. With the "company law" to modify, around thequestion of guarantee ability of company must involve the nature of contract law,company law and the articles of association of the company the nature and the legaleffect of the understanding of the problem, these become the key issue discussed intheory and practice. Around the above problems, the first part of this papersummarizes the academic for the new "company law" article sixteenth, the validity ofthe guarantee contract theory, are invalid, the distinction of three kinds of main views.After carding about the validity of guarantee is mainly theoretical disputes, thesecond part of the paper examines in detail the relevant provisions in the legislation ofthe guarantee ability of company. Through the typical case discussion court judgethought differences reflected in business guarantee capacity and development in thejudicial practice in detail. Think of the new "company law" on corporate guaranteesystem adopted a more legislative norms of science, under the following company tothe principle of autonomy, from the legal system, clear company has fully guaranteedthe right ability.In the third part of the thesis is the analysis of the nature of the new "companylaw" security standard that the new "company law" is mainly to regulate the company guarantee from the perspective of corporate governance structure. Focus on programspecification guaranteed the right to exercise ability. In this part, the paper discussesthe new "company law" limited exercise program on guarantee right ability andlimited to the exercise of right of guarantee ability by the articles of association of thecompany. Believe the new law for the company in violation of the law and the articlesof association of the Company Limited provisions of the act should bear the legalconsequences not made clear.In the fourth part of this paper, mainly discusses the new "company law"framework for the validity of corporate guarantee contract should apply the rules. Themain analysis company representation right structure, company representation rightexpansion of the related theory and commercial trading habits from the point of viewof the legal representative system; a discussion on the relationship between thearticles of association of the company and company of representative. Determinationof validity and bona fide rules relative to override the guaranty contract are discussedin detail.In the conclusion part, the paper argues that the new "company law" after theintroduction of the company in the right of guarantee ability, the system design doesnot achieve the desired effect. We should establish internal flow system specificationof the company guarantee contract; explicit transaction relative person’s review ofobligations, and formulate corresponding regulations; distinguish between DisclosureInc and close corporation, to adapt to different corporate governance needsrefinement rules guarantee; it is necessary in the related guarantee in the applicationof business judgment rule; improve the system of attaching importance to themanagement agency the cost of the problem.