Company Guarantees The Legal Effect Of The Contract

Company’s external security system is an important one of the Companies Act, the company’s operations and the development of great significance, but also the development of market economy, finance the necessary means.2005"Company Law" confirmed the company has the ability of external security, external security company constructed a resolution system, clear the company can limit the amount of external guarantees, etc., but there are still many problems to solve these problems, our jurisprudence has related research, but intense controversy, do not form a consistent view, pending further study. In judicial practice, the different parts of the court because of the "Company Law" on page16to understand and act on the company’s internal effectiveness of the company’s external security issues such as the impact of different understanding, leading to the phenomenon of frequent co-occurrence of different contractors, undermines judicial the authority of the effectiveness of the company’s external security related issues need to be clear, that judicial practice guidance. Therefore, the combination of judicial practice, systematically the effectiveness of the company’s external security issues in-depth study has important theoretical and practical significance, but also the current Law of the important issues.In addition to introductory and concluding part of this article, the total is divided into three parts:The first part is the analysis of the "Company Law" Article16, paragraph1, provides that "Company Law" very clearly established the company’s ability to external security, external security company provides a resolution procedures, specifically the company’s articles of association may restrict the company external guarantees. In the case of foreign companies on the legislative guarantees, there are three modes, namely,"the principle of prohibition, exceptions permit" mode, such as Taiwan, China;"full license" model, such as the United States;"principle to allow the exception prohibits" models, such as the United Kingdom. The second part of the process of the company guarantees classified as "Company Law" Article16, paragraph1, of the meaning of behavior within the company formation process of the resolution and external guarantee contract is subject to the "Contract Law","security law" or "Property Law" adjustments two levels of external contract actions from different levels of these two levels applicable laws and regulations, to clarify the resolution behavior within the company and the company has signed a guarantee contract behavior. Because of the listed companies and unlisted companies in information disclosure transparency, disclosure obligations and legal regulations are inconsistent with the relevant requirements, the third person of non-listed company’s articles of association and resolutions guarantees no obligation to review, and for listed companies Articles of Association and resolutions of external guarantee responsibility formality examination obligations.The third part analyzes the company’s articles of association and the validity of the contract relationship between external security,"Company Law" Article16, paragraph1, of the company through the company’s articles of association grant autonomy, the company reserves the right to prohibit charter company guarantees provided; undocumented Articles company’s external security matters, the company’s ability to provide security has no effect; when the Articles of Association of the company’s external security procedures and limits with the relevant provisions, the breach of the articles of association to provide security outside the company’s external security have an impact on the effectiveness of the resolution, but that is only the company’s impact on the effectiveness of internal behavior. These unite in the case, since the third person in the company charter and resolutions did not have the company’s external security review obligations, these acts of the third person is not affected, the company shall not be bona fide third person and no-fault claims external guarantee contract.Innovation of this paper is to combine the referee cases and judicial practice related to the theory of the Companies Act, the company guarantees the process into the "Company Law" Article16, paragraph1, the provisions of the resolution behavior for internal and external means forming process guarantee contract is subject to the "Contract law","security law" or "Property Law" adjustment of the external behavior of two-level contract from the analysis of these two different levels of the hierarchy of legal norms applicable to clarify the internal resolution of the company’s external behavior signed a guarantee contract behavior. Combined with the court’s decision in judicial practice, the guarantees provided for the companies into listed companies and non-listed companies were discussed. Because of the listed companies and unlisted companies in information disclosure transparency, disclosure obligations and legal regulations are inconsistent with the relevant requirements, the third person of non-listed company’s articles of association and resolutions guarantees no obligation to review, and for listed companies Articles of Association and resolutions of external guarantee responsibility formality examination obligations.