Empirical Study On The Effect Of Company Defect Guarantee Contract

With the corporation law enacted in2005, it has become a consensus that the company guarantees follow the necessary internal resolution program, but, the law doesn’t stipulate explicitly what’s the force of the law to the drawbacks of company guarantee contract which doesn’t abide by the laws or regulations and doesn’t perform the internal resolution program of company guarantees; In view of the legal effect of the drawbacks of company guarantee contract, there are so many different ideas in theory and court rulings, which damaged the judicial authority seriously, therefore it is necessary for legal effect of the drawbacks of company guarantee contract to study. Law is a practical subject, the paper analyses264judicial cases against the company law article16systematically in order to find the thought of the people’s courts in judicial practice at present and analyze it, hoping to find more reasonable path.At present, people’s court judges the legal effect of the drawbacks of company guarantee contract mainly and directly according to the company law article16, however the author doesn’t think it’s reasonable after analyzing; the company law article16just means the rule of law which results from the internal idea or decision of company, so it can only be regarded as the referee basis of the effect of the internal resolution, and not directly as the referee basis of company guarantee contract effectiveness. Item4of the Legal Interpretation in the Law of Warranty is no application scope in the new company law environment. In addition, the nature of the main contract and guaranty contract form are likely to be the important factors that affect the company guarantee contract effectiveness.The author thinks the reasonable methods to referee the company defect warranty cases is to determine the nature of the company drawback guarantee behavior firstly, then confirm the effectiveness of the drawbacks guarantee contract according to the relevant legal rules about the behaviors. namely the company representative behavior, the guarantee behavior can be divided into legal representative of the ultra vires and Non-statutory representative has no right to represent the company behavior, the logic starting point of the effectiveness of company drawback guarantee is of the contract law article50and article49, For bona fide third person, that is, the other party don’t know or don’t ought to know beyond the scope of authorization by the legal representative, the other party may believe that the offender has the agency, the law protects the reasonable trust interests, the legal consequence of the guaranty contract belongs to the company. The duty of care act as the basis of the responsibilities division after the contract is invalid for guaranteeing the drawbacks in the current judicial practice, the author thinks that the duty of care should be put the judgment on guarantee contract effectiveness.In order to prove the goodwill of creditor, the author suggests that creditor afford reasonable review obligation. The examination of the specific content of obligation is the company’s articles of association and the company’s resolution to guaranty, the focus on the articles review guarantee the ownership of the decision-making power, the provisions of the guarantee amount of limit and guarantee program, then review decision is in line with the company law and the provisions of the company’s articles of association, guarantee company may be required to provide or make a statement for not easy to get or not at all to learn the important information, such as the company’s articles of association, the actual controllers, guarantee amount and guarantee resolution procedures, etc. Review obligation shall adopt the standards of the form rather than substance. When two or more of the interpretation coexist, make a more favorable explanation for guarantee to creditor. Promote the guarantees in the records in the company’s articles of association by the ministry of commerce and industry, standardize the examination duty what guarantee recipient should undertake and the content and standards of the examination duty and the legal consequence of breach the examination duty through introduction of the corresponding judicial interpretation.