Company Guarantee System Research In Our Country Taiwan Area

Company guarantee system is not only an important content in the theoreticalresearch of law, but also the need rules of solving the problem encountered in theguarantee practice. Company is a legal person, different from natural person. When itacts, it must follow the principle of profit. On the contrary, the company guaranteebehavior is not in the traditional sense of the profit-seeking behavior, although maybring potential benefits for the company, but the most direct impact are bad. Buttoday’s commercial society widely exists in the company as a surety guarantee othersdebt situation, mainly lies in the company living in the society, it cannot liveindependence from other companies. Especially in such a financing more difficultwith high financing threshold age, every company may need other guarantee company.So in practice most companies have the needs to guarantee for others.But in company law theory, in line with the company is a legal person, the rightof legal person ability is different from natural person, subject to many restrictions,which means the company, not for all, only for profit for the company’s behavior.This also is the important embodiment of for-profit company features. Guaranteebehavior is not a profit-making behavior, so the company should not be. Before thecompany law (mainland) modified in the2005, we have been sticking to the companyright ability limit theory, do not allow the company to guarantee, but with theincreasingly urgent demand in practice and the weaken of international legal scienceof legal rights ability limit theory, our legislators think twice about and let go of thelimits of a company guarantee behavior. Although in principle to allow companies toguarantee, because of its adverse possibilities, a section of company law dedicated todescribe the program of the company guarantee behavior as a specification. Today,“company law (mainland) revised in2005” has been implemented for nearly10years,and there are many problems to be solved in practice.By comparing, the author found in our country Taiwan area as early as1966onthis issue has put forward a solution, it can be said for half a century earlier than us. Across the Taiwan business community on this issue now and did not appear at odds,either a mature or a long path dependence of system, this is worth studying. Believethat through the comparative study and discussion, we can draw the method to solvethe problem on the mainland for reference. Therefore this article through introducingand researching our country Taiwan area of the company guarantee system, using themethod of historical research and comparative research, from the companyguarantee’s force of law, company law liability and practice effect and existingproblems of implementing company, introduces the guarantee system in our countryTaiwan area company system.We can see, our country Taiwan area still clung to the principle of legal rightsability limit, think prohibited actions in order to guarantee for its restrictions on law,so do not allow the company to do so. But for the needs in the practice, it was notcompletely cut off the possibility of company guaranteeing, retained in the law “otherlaw has a regulation” and “the company’s articles of association allowing thebehavior of guaranteeing” two exceptions. In other words, the company hasprovisions in other laws and the company’s articles of association allowing thebehavior of guaranteeing of the case can be external guarantee. In company legalprofession, company guarantee behavior can be divided into illegal guarantee andbeyond the right guarantee two kinds of circumstances. When in illegal companyguarantee, also is the absence of the above two exceptions, the company guaranteebehavior is invalid; When beyond the right guarantee that other law has a regulation,or the company’s articles of association allowing the behavior of guaranteeing,company beyond the scope of authorization to guarantee, At this time to distinguishbetween creditors goodwill or not, in the case of creditors malicious, companyguarantee behavior still is invalid to the company, only by the principals to assumecorresponding responsibility; In the case of creditors goodwill (usually refers to thecreditor trying to find the provisions of guarantee of the company, the cost too much)the guarantee behavior is effective to the company. In the process of companypractice in our country Taiwan area, the company guarantee as well as mainlandChina is inevitable, so most of the company in its articles of association allow thebehavior, this makes the company guaranteeing in the daily economic life to be normal, and the company shall not guarantee behavior became abnormal. In addition,guarantee procedure is prescribed by the companies in their own way with no unifiedregulation, and even some companies don’t have specific specification for thebehavior. This leads to company law16bar with dummy, in real life does not havethe effect of the specification. We think our country Taiwan area on the companyguarantee system formally insist limit theory, adhere to the right as a legal personability but in effect has breached this limit, just laws over the years never changes, thecompany is explicitly allow in the company’s articles of association, people haveformed a stable pattern, namely we often say that the path dependence. In fact,people’s behavior is already ingenious escape the limit, so even if you don’t changethe law, people can also act in accordance with the existing established ways.From another perspective, the mainland breakthrough the limitation of thecapacity for legal rights to allow companies to guarantee is right and necessary. Onlyneed in the existing legal framework to perfect the specific procedures of the behaviorproblem. So we should draw lessons from China’s “company law” in our countryTaiwan area, in the board resolution to guarantee, guarantee to the company foreffective, undertake guarantee liability by the company, and then recover from thedirectors; No resolution in the board of directors to ensure that behavior, guarantee tothe company as invalid, head of the company can only take responsibility at this time.For the guarantee purpose, to better protect the interests of the creditors, weshould increase, head of the company commits itself to undertake guarantee liabilityclause. We can increase one paragraph in Article16of “corporation law” in China’smainland as paragraph4: Directors or shareholders in violation of the law, the articlesof association or the shareholders’ committee resolution to provide guarantee for theshareholders or others actual controllers. They should be conceited guarantee liability.If there is some damage to the company, they shall be liable for compensation.