Company Guaranty Law Research

Company as the legal person of the most active subject in market economy, its guaranty ability in our country has experienced from the start to a not sure to the evolution of the legislative process. In our country company law under paragraph 3 of article 60 of the 1993, director of the company, the manager was explicitly banned foreign guarantee. Although the competence of guaranty is clear in the company law article 16, 2005, at the same time also from the company’s decision to guaranty company law authority, decision-making procedures, guarantee quota and voting rights ruled out, and other aspects of the relevant company external guarantees and the correlation between the external guarantees clear restrictions.But in judicial practice, the company of guaranty contract effectiveness was not in company law in 2005 were clearly stipulated in article 16 and article 16 provisions are still too abstract, make judicial practice because the legal normative nature of corporation law article 16 different understanding and improper, there are many "connection with different sentence" phenomenon. Therefore, the company law article 16 has been plagued by academia and practice. In view of this, the writer will be on the nature of the specification of company law article 16 key research, and combining with the judicial practice in the court case and overseas companies in different countries and regions under different law system guaranty of different patterns, in the practice of the company’s foreign guarantee contract effectiveness of specific circumstances and the 2 other important factors that affect company guaranty contract effectiveness of detailed research, and to further perfect the guaranty system of the company put forward legislative Suggestions.Introduction, text and epilogue are consisted of the chapter structure of this paper.Introduction part, first of all, from the Angle of the writing background of guaranty phenomenon in China market economy, there are a lot of given the pros and cons of risk analysis, on the one hand, in meet the financing needs of the company itself, guaranty company promoted the circulation of capital and trade convenience, on the other hand don’t specification of guaranty company and legislative loopholes in our country law of guaranty to the company and the external load behavior of some companies greatly damage the company itself and the interests of shareholders and creditors, make company guaranty system in China needs to be further perfect.At the same time also analyzed the company law of the academic and practice circle have been debated article 16 the embarrassing situation in judicial practice in our country. Secondly,from the perspective of the purpose and practical significance, this article try to through consider legislative loopholes, the guaranty system of the company to perfect our country company guaranty system for active financing guarantee market, promote the circulation of capital, so as to promote the development of the company to better feasibility of legislative proposals are put forward. Besides, the article plans to discuss issues of the layout of the architecture, the paper lists a brief overview. Finally expounded in this paper, research methods and expounds the innovation of this article from two aspects.The text is divided into six chapters.The first chapter is elaborated for guaranty system of company as a whole, the court in judicial practice through the first two cases leads to discuss the focus of this article is the guaranty contract effectiveness of different position. Real judicial practice, different regions and different levels of the court because of the nature of the legal norms of company law article 16 different understanding to the judge in the writing of a magistrate reason is always trying to avoid to its nature, this leads to the practice of guaranty contract effectiveness of case company referees have different 3 scales. Secondly, from the perspective of theory on the connotation of the guaranty system of the company and the company’s foreign guarantee under the pros and cons of risk, the current company law of our country company the main types of external guarantees are expounded. Then respectively from the foreign company in China’s corporation law guarantee ability of attitude change, during the implementation of company law in 1993 and 2005 after the implementation of company law courts at different levels under the old and the new company law Angle of view of the different results of decision making by the interpretation, analysis the changes of the external guarantees our company history and development trend. Finally, from the perspective of comparative law concerns of foreign companies in different countries and regions under different legal system guarantee mode, trying to seek for the guaranty system of company in mode of legislation system.Main article 16 of the company law of our country in the second chapter discusses the nature of the legal norms of definition, theory and judicial practice for the nature of the company law article 16 corporate disputes, unable to agree, always unable to reach a consensus. In view of the nature of the company law article 16 are mandatory norms, facultative, comprehensive and effective compulsory norms are four theory point of view. To solve this problem is also a important problem to be solved the whole article, the author based on the analysis of the theorists and the judicial practice on the basis of theory and practical point of view put forward its own analysis, in this paper, the author thinks that company law article 16 does not belong to any one of the above four theories, should belong to a mandatory specification of pipe rational theory, calculated the violation of the provisions of company law article 16, the guaranty contract does not necessarily lead to the company of invalid conclusion, company external guarantees the effectiveness of the contract needs to be combined with other factors to consider.The third chapter the paper also analyzed the main part of the company in violation of the company’s articles of association, the company’s foreign guarantee contract effectiveness of different situations. Due to different understanding towards the nature of the company’s articles of association can also lead to guaranty contract effectiveness to the company. so in this paper, the author firstly a detailed interpretation of the nature of the company’s articles of association, and it is concluded that the company’s articles of association and has the nature of the public and the public, not absolutely to define the nature of the company’s articles of association as have or not of the world have on the world. Second external guarantees to the company in violation of the specific situation of the company’s articles of association, one by one from a different Angle combed the judicial practice in all about guaranty in violation of the company’s articles of association of the company, and to each kind of case company guaranty contract disputes existing in the effectiveness of the combination of theory and practice are analyzed.Fourth chapter on the basis of chapter 2 and 3 in front is further discussed the impact company guaranty contract effectiveness of two other factors that the review obligation of secured creditors and subjective mental attitude. The two factors are discussed in detail to the company the influence of the foreign guarantee contract effectiveness, for the essence of the practice of the secured creditors review and formal review obligations theory discusses respectively, and from improving the efficiency of market transactions, promote trade flows, and the view of saving the cost of judicial administration secured creditors in a company only when the guaranty contract obligation in the form of censorship. At the same time, in view of the secured creditors of goodwill and malicious subjective psychology also has carried on the detailed analysis, think that as long as the secured creditors well-intentioned cases, there is no "should know" legal limit obligations, company foreign guarantee contract shall be legally binding, so that fits our country "contract law" the provisions of article 50 of the spirit of legislation. Otherwise, if the secured creditors malice that conform to "should know" qualified legal obligation, the company foreign guarantee contract shall be invalid.Chapter 5 in order to more comprehensive legal effect problem in the company of guaranty, the special company is a listed company, and to guarantee for the main business of the guarantee of the company’s external guarantees question has carried on the detailed explanation, respectively. Of active capital market and secured financing in our country is widespread on the market of the listed company’s external guarantees problems are discussed in this paper, because the external guarantee of listed companies in real judicial practice in China, especially the related guarantee proportion bigger and bigger. Secondly, studied the professional guarantee, also, to guarantee for the main business of guarantee company with general guaranty phenomenon is analyzed.On the basis of summarizing the previous chapters chapter 6 for further consummates our country company guaranty effectiveness put forward the legislative Suggestions, the author mainly from four aspects to our country the current company guaranty effectiveness put forward the feasible legislative proposals, respectively from the company law article 16 the loopholes of legislation, expand the scope of related shareholder voting rights restrictions, the company’s articles of association for companies not under any guaranty matters and the perspective of establishing and perfecting the guarantee creditor censorship feasibility of legislative proposals are put forward.Conclusion part is to guide language and body content and ideas of comprehensive treatment, and expounds the idea of this article.