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The Company Guarantees Contract Effectiveness

Posted on:2017-03-11Degree:MasterType:Thesis
Country:ChinaCandidate:C LiuFull Text:PDF
GTID:2336330485998205Subject:Civil and Commercial Law
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The key argument of this paper is: The Supreme Court determines that Article 16 of Company Law is mandatory management provision in the specification and that Article 50 of Contract Law and Article 14 of Contract Law Judicial Interpretation II should be legal basis to evaluate the effectiveness of company guarantee contract, which is an idea with serious flaws. The effectiveness of company guarantee contract is related to Company Law, Contract Law, Security Law and other fields, must take multiple benefits into account, and eventually return to the basic question of contract effectiveness judgment in order to obtain a reasonable answer.This article is divided into three parts.The first part has an analysis of current legislation and judicial practice of company guarantee contract effectiveness. In terms of legislation, Company Law in 2005 acknowledged in the form of law the company as equal civil and commercial subject with the right and ability to guarantee and controlled company guarantee right abuse from guarantee resolution procedures. In addition, since the company makes external security in the form of contract, the relevant provisions of the contract effectiveness in Contract Law are direct legal basis for the guarantee contract interpretation ideas. In terms of judicial practice, the core of the Supreme Court explanation idea lies in identification about Article 16 of Company Law in the specification; however, the Article 16 belongs to mandatory effectiveness provision or mandatory management provision without real significance for company guarantee contract effectiveness judgment.The second part has a deep assessment on interpretation ideas of the Supreme Court about company guarantee contract effectiveness in order that this paper can lay the legal basis for reconstruction of company guarantee contract effectiveness interpretation ideas. The current interpretation ideas are one-sided and lack of deep thinking on the effectiveness of the company guarantee contract. First, Article 16 of Company Law is empowerment and mandatory provisions in the specification; second, the direct legislation purpose of Company Law Article 16 is to promote the effective formation of company internal meaning; finally, the current interpretation ideas are lack of basic value judgment and interest measurement.The third part reconstructs interpretation ideas of company guarantee contract effectiveness. The legal representative of the company violates guarantee contract made by the company’ Articles of Association and resolutions, which is ultra vires conduct of the legal representative. Whether the ultra vires conduct has an external effect to the secured creditor should apply Article 50 of Contract Law.
Keywords/Search Tags:the Company Guarantees Gontract Effectiveness, Internal Behavior, Externalization, Value Judgment, Examination Duty
PDF Full Text Request
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