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The Validity Of The Ultra Vires Company External Guarantee

Posted on:2016-12-18Degree:MasterType:Thesis
Country:ChinaCandidate:J ZhangFull Text:PDF
GTID:2296330479488050Subject:Economic Law
Abstract/Summary:PDF Full Text Request
In the case of the modification of company law in 2005, the past controversial issues such as if Chinese company has the ability to provide external guarantees are no longer full of controversy. However, the present company law in China still exists some problems, such as the effect of the company guarantees which exceeding the authority of the company. The effect problem is not only controversial in academic but also in the field of justice, different courts in China often have different positions on how to identify the legal effect of the similar cases, this inconsistent state may prejudice the judicial authority and even damage the demonstration effect of court and law.As we all know, law is a quite practical discipline, and the company external guarantees has a close connection with the business practices. Therefore, research in company guarantees shall not separate from the analysis about the judicial cases. This article adopts the empirical analysis method in this article to study typical guarantees cases in China. The author tries to study the logic of the judgment and thinking directions about the effect of the judgments, and do academic analysis and empirical summaries, and then also do research about the examination duties of the third party, the external effect of articles of associations and company resolutions, because those factors will influence the effect of the external guarantees. The aim of this article is to draw the trains of thoughts of company external guarantees thorough the above steps.This article comprises five parties:First, the introduction illuminates the purpose and significance of the writing. Company guarantee activity in China is active, but the abstract regulations about company guarantee of company law led to the problems of controversy both in the fields of practice and theory; the second party of the introduction is committed to introduce the purpose of the writing which is doing research about the guarantee exceeding authority integrating theory with practice; and proposes the main factors to consider, such as the external effect of the articles of association and company resolutions. The end of the introduction is the literature review of this article, which is divided by the 2005 version of company law, to summarize the academic discussions of the company guarantee problems.Secondly, the first chapter of this article carries out a detailed analysis about the company external guarantee, start with the concept values to analyze the legal basis and theory developments, and find out the different opinions between various jurisdictions about external guarantees. In my opinion,the analysis of the value of concept can do favor to clarify the deep meaning of the company guarantee and make cushion for the following discussions about the confirmation and restrictions about the company guarantee.Thirdly, the second chapter of this article focuses to analyze and summaries the judgments of company external guarantee with overall and details matters. In specific, this part analyzes the effective form of the judgments, distinguished with three manifestations; and also focus on the background mental processing of the judge of those cases to see what is the main factor for them to give such judgments; and then tries to analyze the ruling procedures and foundations and hope to make the judicial perspectives sense finally; the end of the this chapter select some classic company guarantee cases to do intensive study and find out what is the main different emphasis between different periods.Fourthly, the third chapter is the core of this article. It is trying to study the main point of the company external guarantee on the basis of the aforementioned analysis. The start of this chapter sums up and analyze the different theories, then turn to study the factors which may influence the action of company guarantee, such as the external effect of articles of associations,the examination duty of the third party and the nature of the duty.Finally, the fourth chapter of this article is in depth discussion about the effect of different company external guarantee which is exceeding the authority under the foregoing research. This chapter tries to, rather than the “one size fits all” logic about this issue which exists in traditional judicial fields.
Keywords/Search Tags:Corporate Guarantee, Effectiveness, Ultra vires Cases
PDF Full Text Request
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