Study On External Guarantee In Companies

In the commercial trading activities, Transactions subject often take the form ofguarantees to reduce transaction risk and protect the security of transactions.Guarantees as the company’s important corporate affairs reflected independentincapacitated and is an important tool in the competitions. The so-called corporateguarantee, means the company with their credit or specific property to provideprotection for the creditor’s debt to achieve the behavior of others. The2005"Company Law" Article XVI clearly affirmed that the company has the ability toguarantee. Standardize the decision-making bodies and decision-making proceduresof the company’s external security and highlights the company’s autonomy. From alegal basis for the company to guarantee, The2005"Company Law" Article XVI ismainly based on the company’s external security regulations. However, in2005,"Company Law" Article XVI on the understanding and application, either in theoryor practice circle there are diametrically opposed views. Controversy is mainlyreflected in the following aspects: First, what is the "Company Law" normativenature of Article XVI is? Is the effectiveness of the management of peremptorynorms or peremptory norms, or is arbitrary norms? Second, the company in violationof the "Company Law" Article XVI signed a contract on how the effectiveness of theguarantee? Is a direct result of the company guarantee contract void? Third, whetherthe Articles of Association of the Bank effective, relatively guarantee contractguarantee contract at the time of the signing of the articles of association andwhether the resolution should be reviewed documents? Understanding of theseissues become the focus of external security issues research firm theory, foranalyzing and solving legal disputes the company guarantees applicable, hasimportant value and practical significance.Research the company’s external security system has important theoretical andpractical significance. Before the new "Company Law" was promulgated93yearsof "Company Law" provisions of the company’s external security system is unknownsemantic structure of confusion, to judicial interpretation left a huge space, scholars whether the company has the ability to guarantee a fierce controversy. Meanwhile,there are also a large number of practitioners controlling shareholders of listedcompanies controlled companies using its dominant position to provide security forthemselves, the company becomes an "ATM " phenomenon abound.2005"CompanyLaw" Article XVI first affirmed the ability of the company’s external security,followed depending on the type of external security company, the company isdivided into a general security guarantees and associated guarantees. Generalsecurity refers to a natural person and corporate shareholder of the Company toprovide security outside the association to provide security guarantee refers to thecompany as a shareholder or actual controller. Because of practice, to providesecurity for the company breaches the shareholders phenomenon after another, andrely solely on the courts to determine the "Company Law " normative nature ofArticle XVI, combined with the "Contract Law" the relevant provisions of thecontract is invalid, the company guarantees to identify validity of the contractreferee thought there problems. This paper attempts to depart from the intention toexplore the provisions of Section16, combined with the company secured a contractto distinguish between internal and external validity issues theoretical researchcompany in breach of the terms, and by combing and interpretation of the case toanalyze ideas magistracy guarantee contract counterparty obligations set reviewreasonable.