| China’s 1993 "company law" sixtieth article: "a director or the general manager may not provide a guarantee for debts of a shareholder of the company or other person with the assets of the company." The 214 th article of the law: "the board of directors, manager in violation of the provisions of this law, the assets of the company for the shareholders of the company or any other person to provide security, shall be ordered to cancel the guarantee, and shall bear the liability for compensation, the illegal guarantee income owned by the company." "Company law" provisions of article sixtieth, the circles of theory and practice a lot of controversy, some people think: the prohibited the corporate external guaranty, some people think: the provisions are only limited company external guarantee procedure and guarantee. The 2005 amendments to the "company law" article sixteenth clearly affirmed the company external guarantee behavior ability, and the provisions of the rules of procedure of the foreign guarantee. This article is to settle disputes, but the regulations are not perfect but has brought a series of problems, a lot of company law in the writings of students physical interpretation, the courts at all levels and in different periods of the same court in similar cases in the application of the "company law" sixteenth article appeared different attitude, seriously affecting the credibility of the judiciary and stability.The author of this paper in the analysis of the case, to clarify the basic theory of the disputes, to find out the focus of controversy about the corporate external guaranty, from behind the value of the rule, using the basic principle of civil law and the company law and try to propose solutions to these problems. This paper is divided into four parts.The first part is an overview of the company’s external security system, mainly describes the company’s external guarantee system significance, may give the company property risks, from a comparative law study on the company’s external security system, the system of foreign security companies as the company law is a very important, this system not only has the vital significance to the the development of the company, but also have a certain impact on the development of the market economy. In China, corporate demand for funds, liquidity is also very fast, sometimes companies will need a lot of money to flow, companies need loans to other companies or banks, and the company’s ability to borrow money, mainly depends on whether there is one for the debtor to guarantee. Under normal circumstances, in the face of the huge amount of personal loans, do not have such strength for the company guarantees, can only rely on other companies to provide security. Guarantee the company has a good reputation, so when they encounter difficulties in the capital turnover time, other companies will lend a helping hand to the, conducive to long-term development of the company. At the same time, the guarantee is to provide security for the shareholders of the company, is conducive to the development of the group. But on the other hand, the company is a non-profit organization for the purpose of profit, the principle of corporate external guaranty in violation of the company, while reducing the stability property of the company, the impact of the company’s shareholders, as well as the interests of the creditors, therefore, has admitted that the company’s external guarantee in behavior ability at the same time, the company’s external security procedures must be to make strict rules. At the same time, from a comparative law analysis of the legislation of other countries and regions, hoping to find some guidance on the research. The second part of the article mainly introduced the "property law" in article sixteenth, in 2005 the revised "company law" article sixteenth, article 105 th, article 122 nd and article 149 th together provides a series of rules the company’s external security system, the core of the terms is sixteenth, in 2005 the "company law" sixteenth article: "the company to invest in any other enterprise or provide guarantee for others in accordance with the provisions of the articles of association of the company, a resolution by the board of directors or shareholders’ meeting, the shareholders’ meeting; the amount of the company’s articles of association of the total amount of investment or security of a single investment or guarantee allowance, shall not exceed the prescribed limit. The company as a shareholder or actual controller of the company to provide security, must be approved by the shareholders’ meeting or the shareholders general assembly resolutions. The provisions of the preceding paragraph or the shareholder dominated by the actual controller specified in the provisions of the preceding paragraph shall be shareholders, voting on the matter. The vote on the voting rights held by the shareholders present at the meeting of the other half of the. On the nature of article sixteenth, the circles of theory and practice a lot of controversy, has never reached a consensus view, some people think it is the default rule, some people think it is mandatory, it does not affect the validity of the contract of guarantee, some people think that the direct effect of guarantee contract effectiveness. The author from the mandatory provisions and any provisions of the concept and the nature and the judgment standard of the "company law" article first paragraph sixteenth is arbitrary regulation, second, paragraph 3 is mandatory, namely "company law" provisions of the first paragraph of the sixteenth articles of association of the company can exclude the application, while the second and third the provisions of paragraphs, the articles of association of the company can not exclude the application of, also cannot make and its provisions are inconsistent, if you make a provision to the contrary, the provisions of the articles of association of the company’s external security of the voting procedures and rules are invalid. The articles of association of the company or the company is not in accordance with the procedures for voting on the invalid provisions of the articles of association of the company external guarantee, the guarantee contract are invalid, the author thinks that, the internal behavior can affect the validity of the guarantee contract, "company law" is the organization law, law, the provisions of regulation is the internal behavior of the company’s internal behavior, invalid the company does not affect the validity of the guarantee contract, the company provides the guarantee contract, whether the effect that according to the "contract law" article fiftieth "and the judicial interpretation of Guarantee Law" provisions of article eleventh, we need to judge the ultra vires external security, the creditor is good third. In what circumstances constitute the provision of external guarantee ultra vires: first, the articles of association shall, whether the company has the ability of external guarantee behavior? The author believes that the provisions of the company’s external security of the company law company law from 1993 to 2005, it can be seen that the company has the external guarantee behavior ability, as long as the company’s articles of association does not make restrictive provisions, the company has the ability to guarantee. Just as the shareholder or actual controller of the company to provide security, only by the shareholders(large) resolution, for other companies or individuals to provide security, if the company is a specialized Guarantee Corporation, then the shareholders and the board of directors has the right, ordinary companies, shareholders will have the ability to. Second, if the articles of association of the company, the company’s external security by resolution of the board of directors, and the legal representative of the company’s external guarantee matters but by the shareholders(large) resolution, can be thought of as the right guarantee. If the provisions of the articles of association of the company to provide security mechanism is the shareholders’ meeting resolution, but by the board made a resolution, if it is to guarantee companies, the resolution is effective, other companies, resolution is invalid. Fourth, the board of directors, manager of individuals without guarantee, the author thinks that, if the company to the shareholder or actual controller of the company to provide security, only by the company’s shareholders(large) will come to resolution, if the board, manager of unauthorized individuals to shareholders and actual controllers, provide a guarantee, must form a guarantee ultra vires, guaranty contract shall be null and void. The company to other companies or individuals to provide security, the articles of 5 association in the shareholders(large), the board of directors to make a choice, of course, the articles of association of the company may be stipulated by the board of directors, the manager decided to provide foreign guaranty. If the articles of association of the company to make such provisions, then the directors and the manager of the ability to decide to provide external guarantee, if the violation of the provisions of the articles of association of the company directors and the manager of the guarantees for other companies and individuals, belong to the corporate external guaranty.The third part of the article mainly introduces the judgment standard of the bona fide counterpart, the effectiveness of the company’s external guarantee of the contract that has a decisive role, the relative legal protection of goodwill, the malicious people should not get legal protection, according to the "contract law" article fiftieth, which is relatively good corporate external guaranty situation did not know or should not know. Know is know each other beyond the competence of the guarantor still conclude the contract of guarantee, or is the company management and the secured party collusion to damage the interests of the company, then a security contract shall be invalid. So what is a bona fide counterpart should know about, whether to include the internal resolution rules on foreign guarantee as well as the company’s articles of association of the company. With the abandonment of constructive notice theory and ultra vires theory, many countries have advocated the company has no effect to the world, so the content of the articles can not be bound by the creditor, but the author thinks that, since the company law has been clearly defined in the article sixteenth of company external guarantee no agenda order, law has widespread applied force, so the law such provisions have been in the company’s articles of association, and the company’s external security of the special activities to get more interests of creditors, to assume the form of review obligations to the articles of association of the company, and did not increase their burden. The company on the external security of the internal resolution, the same as a rational traders, ought to do the necessary forms for internal review of obligations, director, manager of forged signatures, it does not belong to the scope of the creditor should review. The company’s external security of the amount in excess of the limit prescribed by the articles of association, so the validity of the guarantee contract should be how to identify, according to the "contract law" article fifty-sixth: the contract invalid or revoked shall have no legally binding force. The portion of the contract is invalid, does not affect the validity of the other parts, the other parts remain valid. As already discussed in the articles of association of the company are third forms of review of obligations, so third people signed the guarantee contract with the company, you should pay attention to the prescribed limit company external guarantee, so the corporate external guaranty contract exceeds the limit part is invalid, but in order to maintain the transaction security and stability in the premise. No damage to the interests of the company, because the company external guarantee contract can be divided into a part of contract, does not affect the validity of other parts, so that foreign guarantee contract shall not exceed the limit of the part is still valid.The fourth part of the article is in the security contract shall be invalid case discussion, assume responsibility in the practice, according to the court "judicial interpretation of Guarantee Law" provisions of article seventh, that the company should bear joint and several liability, and from a legal point of view, the guarantee contract is invalid, the guarantor shall bear the liability of culpa in contrahendo is. The conflict law and guarantee law protection of the protection of the legal interests of company law in the author’s opinion, the court should be cautious, weigh the interests of all parties, in order to find the equilibrium point in a variety of legal interest protection in. |
PDF Full Text Request