The Case Analysis Of Effectiveness Of Corporate External Guarantee

In the company law2005corporate external guarantee ability has been cleared, but due to thelimitation of the law and the vagueness of the language, the corporate external guaranty still hasmany problems, especially the disputes of the corporate external guarantee.This paper based onthe reality,and make the import and export agent contract case of CNBM as the breakthrough pointwith in-depth analysis of the dispute focus.At last, the author will put forward some suggestionscombined with the actual situation. The structure parts into three levels，namely setting upquestions, analyzing problems and solving problems,which aim to clarify the effectiveness ofcorporate external guarantee.First of all, the major point of CNBM’s contract case is refined,and the disputed focus aboutthe corporate external guarantee,wether YDT corporate should undertake the obligation, is locked.But since the dispute focus is too general,this paper summarized four more specific points: Whatis the legal foundation of corporate external guaranty?How Articles of association of the companyinfluences the effectiveness of corporate external guarantee? How to make sure the effectiveness ifthe company legal representative or other directors, managers and other senior managementunauthorized sign contract of corporate external guaranty? Wether the creditors have reviewobligations in the security contract process with the guarantor?Secondly, according to the four disputed points, this article makes a thorough theoreticalanalysis, and return to this case. Through the analysis, we draw some conclusions: first, thearticles of association of the company does not have the common effect, so it can’t affect theeffectiveness of corporate external guarantee alone;Second,the company legal representative orother directors, managers and other senior management personnel shall not be entitled todetermine a external guarantee contract,otherwise it can only be regarded as general unauthorizedagent behavior,and its effect need to be sured by the company; Third, due to the provisions ofarticle16of the company law,the creditor need to be forced the obligation—detect the resolutionwhich determined by the guarantor’s board of directors or shareholders.Finally, through analysizing this case deeply, it is not difficult to find that corporate externalguarantee still has a lot of problems in our country, and they affect the effectiveness of corporateexternal guarantee, eventually led to disputes frequentlylike the CNBM’s case. Therefore,after analyzing the problem, we still need further solution.Three aspects,the legislation level, the company level and the creditor level,are partly put forwardto solve these problems in this paper.In the legislative level, we should refine article16of thecompany law, and prohibits the unauthorized guarantee behavior of the directors, seniormanagement through the judicial interpretation specifically; In the company level corporateexternal guarantee should be cleared in the company’s articles of association,and corporategovernance structure should be perfected.In addition,a complete security evaluation andsupervision program of guarantee should be established in companies; In the creditors’ level, should the creditors’ detecting obligations be cleared, and the creditors can ask the debtor to seekfor various guarantee appropriately.