Research On The Sixteenth Company Law And The Company Guarantee System

At present China’s economic development faces many problems,one of the most obvious and difficult for small and medium-sized enterprise financing problems.The company guarantees system is in this situation arises at the historic moment.Company guaranty main body is mainly the guarantor,secured creditors and shareholders,which determines the behavior of the three guarantees the effectiveness of the contract,also share the responsibility of the parties,and directly influence the company’s operating costs,risk prevention and control.Under the condition of market economy company guarantees are mainly about the effectiveness of two aspects: first,provide reliable guarantee for the realization of the creditor’s rights,in order to reduce risk and enhance company credit;Second,enhance mutual trust for the enterprise to build the foundation,thus accelerating the flow of goods and capital in the market,which is beneficial to the overall social and economic prosperity and stability.Company guarantee system is of great significance,but the attention to its and its significance in legislation in our country don’t match,the guarantee system of our country law to the company just made a short answer and imperfect rules,is the earliest in 1993,the company law of the People’s Republic of China(hereinafter referred to as the "company law")only regulations prohibit improper directors and managers of guarantee behavior,for the company without any guaranty of procedure rules involved,thus there are a lot of theoretical and practical circles.Revised the company law in 2005 abolished the regulations of the company law in 93,replaced by the provisions in article 16 as the core,mainly includes the following several aspects: first,to provide a general guarantee for others when decision-making body and provisions on the procedures of decision making;Second,the company for its shareholders or actual holding people provide the special requirements of guarantee in connection;Finally,is the important guarantee of listed company resolution special procedure,etc.With the "company law" for the company in 1993 compared to the provisions of the guarantee system is an important improvement.Now for the company guarantee the validity of the guaranty contract problems in the system there are a lot of controversy,but its basically like this: first is the correct understanding of the company law article 16 how to express and the purpose of this law,the second is to confirm that the company law article 16 is a effective mandatory standard specification,because this will be a judgment standard to determine whether the other party for the goodwill,relative person’s faith also determines the legal representative of the ultra vires can produce legal effect to the company.Despite the setting of the guaranty system of the company is more reasonable,the current "company law" also has indeed made significant changes,but is still have a lot of problems are not solved,and there have been some scholars discussed around these problems.Through the analysis of the company law article 16,it is easy to come to the conclusion that it is not effective mandatory specification,therefore he also cannot be used to identify the company external guarantees the effectiveness of the contract.And the problem is the essence of the legal representative of the authority given by the articles of association and shareholders rights,if that was established,then whether goodwill can as determine whether the company’s external guarantees it has legal effect.This article is based on the above analysis to find the core of the problem is to determine whether the other party in good faith,finally through the analysis of the conflicts of interest between the parties subject to find out the legal representative and the necessity of the distinction between the legal behavior.More important is how to determine the legal representative beyond the scope of authorization,subjective status of the other party to enter into a contract,or if it knows or should know its beyond the scope of authorization.The company law and article 16 of the relevant company guarantee power attribution and its operating procedures,is to determine the important according to the obligation of the other party to review.After the review of the other party has the legal obligation and need to solve is the other party to fulfill its obligations to review what way is the goodwill problems,mainly includes the other party for the examination of the contents should be what kind of degree,and it should be form of review or examination as to substance suppression.