Concerning The Impact Of The Articles Of Association To The Company’s External Guarantee

In the present stage of economic operations, external guarantee of company has become an extremely universal and commercial transaction. For external guarantee of company, our law gives greater autonomy rights of the articles of association. Compared to the pre-amended "Company Law", the 2005 revised "Company Law" for does the company enjoys external security capabilities were made more clearly defined, but due to the relatively simple expression, particularly its does not involve the regulations about consequences of company violates articles of association to provide the security, so it results in a lot of controversy. In order to solve the dispute of China’s judicial practice about terms of external guarantee of the company due to different perceptions and the different opinions, in order to solve the situation arising for "circumstances of the cases are broadly consistent but the judge of the results are different" from judicial practice, it is necessary to make the specific discussion about this issue.This article will be divided into four parts to discuss; the main contents are as follows:Part I: This section corresponds to the first chapter in the article. Through internet searches, periodicals queries and data collection, the author compiled some typical cases on the company’s external security. By organizing the merits of these typical cases and analyzing the judgments, the author abstracted the issues concrete, and pursuant to find out the disputes about the external guarantee of company-related issues arising from the current judicial practice in our country.Part II: The section in the article corresponding to the contents of the second, the third and fourth chapter. The main content of this section is for sorting out the relevant theoretical basis. Among them, the second chapter discusses the nature of ownership about the sixteen article of the "Company Law", the third chapter studies the articles of association about the effectiveness of external confrontation, and the fourth chapter mainly discusses the creditor obligations of review attention. In this section, the author through sorting out the theoretical basis of the articles of association effect on external guarantee of company, summarizing by theorists of different points of view, combining with the current judicial practice and theory, resulting their respective opinions and views after the research.Part III: This part of the chapter in the text corresponding to the fifth chapter. This is the focus of this treatise, and this is the author’s exploring about the effectiveness of the external guarantee of company of identified problems after making the case finishing and sorting out the theory of external guarantee company to identified problems. In this section, through the integration of preceding chapters discuss the findings, I believe, the impact of the articles of association to the company’s external guarantee effectiveness is limited, in the external guarantee the effectiveness cognizing, the law should be the major judgment basis, and author will make conclusion in the text by the some theories.Part IV: This part of the corresponding in the text of the fifth Chapter. By the foregoing related discussion and research, the author seeks out the focus of the current practice of controversy on this issue, for this, I propose to targeted through improving institutional building and strengthening supervision and management and accountability mechanisms form this two major aspects, among this, the advice of legislative system construction is to improve legislation and the scientific development of the articles of association; the advice about the strengthen and improve the supervision and management will mainly from the strengthening of internal board of supervisors, the strengthening of external banks, the CBRC supervision and management, and establish violation appropriate accountability mechanisms to provide security these three circumstances to specific discussion.