| Listed company external guarantee system refers that the listed company promises with its credit or specific property when obligor is unable to repay the debt at maturity, the payment liability will be undertaken by the listed guarantee company. Under the background of market economy, the company, as the most important entity, external guarantee has great significance for its own survival and development. We can even say that it also concerns success and future. Thus, company guarantee exists generally in the market economy.However, company guarantee is not perfect without any risk, it can increase business risk virtually. Once the obligor is unable to repay the debt at maturity, the Creditor can inevitably require the guarantee company to undertake guarantee liability though exercising security interests, which will directly reduce the assets of guarantee company. It can be seen that the interests of company itself medium-sized and small shareholders and general obligees will be harmed once company improperly provides guarantee for others. Even worse, the actual controller improperly provides connection guarantee for stakeholder in order to obtain improper interest, that becomes illegal way to encroach on medium-sized and small shareholders and the company obligees.Taking the management risk into account that is perhaps caused by external guarantee system, "company law", which was promulgated in 1993, clearly states, "company directors, managers are forbidden to provide guarantee for their company shareholders". However, under the background of rapid development of market economy, this article, which set too much limits to company external guarantee, blocks market development deeply. So "company law", the version of which was promulgated in 2005, was revised the provision related to company external guarantee and the article was abolished about "company directors, managers are forbidden to provide guarantee for company shareholders". But what cannot be ignored is the provision related on company external guarantee system of "company law" promulgated in 2005 is still relatively simple, mainly reflected in the article 16, that does not make an explicit stipulation. So there exists many arguments in juridical practise, concretely speaking as follows:Fist, what kind of legal effect does this provision has, is it peremptory norms or arbitrary norms, whether to set limits on the ability of the company’s external guarantee? Second, what is the significance of this provision for the company external guarantee resolution-making procedures, how is the effection can be in violation of the procedural requirements? Third, whether the Articles of Association is basic right source of company external guarantee or not, if the Articles of Association itself does not make a statement about external guarantee, whether the company has ability to provide external guarantee? Fourth, how to identify the effection of guarantee contract if company provides external guarantee in violation of the Articles of Association.Regarded problems described above as starting point. On the basis of understanding the relevant laws and regulations related to the company external guarantee system, the author put forward own views on Article 16 of The Company Law in order to get an explicit view through analysing concrete nature of this article.in the process of writing, the author has made a detailed analysis and summary according to a large number of cases, and systematically comb the research achievements about the company external guarantee theories in jurisprudence. Induct in chronological order on the basis of that as follows,First, before revised the Company Law in 2005, the substance of the relevant papers at this stage was to analyse the problems of this article and put forward own constructive suggestion on the basis of understanding the relevant regulation about the article 60 of the 1993 Company Law. Second, after revised the Company Law in 2005, though the article 16 of the 2005 Company Law had made a great modification related to the article 60 of the 1993 Company Law. However, there still existed many problems even after the Company Law had been revised, that not only did not decrease the arguments on company external guarantee compared to before, the dispute became more and more serious instead.The quantity of the theory research achievements at this stage was walkover beyond that of research achievements about the article 60 of the 1993 Company Law.The focus of papers mentioned above embodies two aspects as follows,First, paragraph 1, Article 16 of The Company Law enacted in 2005, how should be understood and applied in practice; Second, what about the force of law of the company’s external guarantee contract, in the case of security esbreach.When scholars analyze the application of article 16 of the 2005 Company Law, the common practice is, starting from discussing the relevant provisions of the company’s articles of association and the validity of the guaranty contract, combined with some common problems in the judicial practice, to analyze external guaranty system of the company. Some scholars think that the company external guarantee contract is directly affected by the company guarantees resolution, some scholars argue that the company external guarantee contract is valid or not only depends on the guarantee resolution if there is a flaw, the third person’s subjective state of mind should be taken into consideration. In short, the research result is well but controversy exists. In my opinion, the second theory is relatively in line with the fact, that is, the company external guarantee contract is valid or not is relevant to the third person’s subjective state of mind.At the beginning, the author analyzes paragraph 1 of article 16 of the 2005 Company Law from two sides according to the logical structure. The author thinks that, paragraph 1 of article 16 of the 2005 Company Law, which writes about the provisions of the external guarantee issues, mainly includes the provisions about the company external guarantee ability and the company external guarantee resolution procedure.to the resolution program rules, the provisions in the layered analysis, on the basis of stratified analysis, the author makes a clear demarcation to the nature of the clause. Secondly, according to the internal and external effect of guarantee contract, the author analyzes the validity of the company’s illegal external guarantee contract.The author considers that the resolution of the company should not affect the validity of the contract with the third party, and therefore the provisions of paragraph 1, Article 16 of 2005 Company Law about the internal resolution on external guarantee has a binding effect only within the company, in favor of clarity of the company internal rights and responsibilities, and its role is limited to protect the interests of the company, shareholders and the general obligees by constraining the company internal guarantee.The author believes that, because external guarantee contracts come down to the main interests of a third party, the company internal resolution has no right to determine whether the contract is valid or not, and its validity should be based on the relevant clauses of the Contract Law and the Guaranty Law.Accordingly, the author considers that the validity of external guarantee contracts, should not be considered invalid just because the violation of the provisions of the Articles of Association. The article includes four parts:Chapter one is the overview of company guarantee system. In this chapter, the basic issues of the company guarantee system is generalized, including its concept, classification, value and function, etc. Chapter Two is about the comparison of the legal regulation about external guarantees of listed companies at home and abroad. This chapter presents the related theory and stipulation of company external guaranty system in the civil law countries, and expounds the development situation of domestic listed company external guarantee system. Chapter Three is about the shortcomings of guarantee system of listed company in China. This chapter mainly discusses problems and reasons of the listed company in the process of external guarantees, and analyzes China’s relevant legislation currently, finds the shortcomings, so as to provide reference for perfecting the legislation. Chapter Four is about the reflection on consummating the legal system of listed company external guarantee in our country. The main content of this chapter is, on the basis of the advanced experience in company external guarantee of the two law systems, combined with the thinking about the present situation of company guarantee system legislation in our county, to propose the suggestions on consummating listed company external guarantee system in our country. |
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