The Law Application Of Company's External Guarantee Effect

The revision of 2005 "company law" provisions of the company has the ability of external guarantees. But due to the revised company law was not regulate for how the effectiveness of the illegal guaranty, this caused the judicial circles around the company illegal external guarantees the effectiveness of a new controversial issues, this is mainly manifested in the following aspects: first, there are different opinions about the nature of the company law article 16, for the identification of nature of which determines the different understanding of illegal external guarantees effectiveness; Second, there are different understandings of the obligation to review the articles of association of the company and the decision of the company guarantee and the standards of the review; Third, the company's articles of association of guaranty matters not specified when the company cannot make external guaranty and the determination of guarantee at this point of disagreement. These controversial problems make the judge ruled in external guarantees cases too much discretion, led to the judicial practice on the effectiveness of the "illegal external guarantees" produces a wide range of the "connection with different sentence" phenomenon, serious influenced the fairness and justice of the law. There are three reasons of these controversial issues : first,the legislation to the effectiveness of the illegal guaranty responsibility were no relevant provisions; second, the obligation of the third party review uncertain;third, fuzzy rules and laws to guarantee resolution authority.The legislative purpose of the company law article 16 is through the company's external guarantee of the regulations of the company's internal procedures, let the company seriously deal with the external guaranty. That is to say, the adjustment object of article16 is the company's external guarantees of the internal approval decisions rather than the contract of guaranty itself, so no matter what the nature of article 16 is its can be used directly to identify the effectiveness of the external guarantee contract. Company guaranty effectiveness should be combined with the company law, "security law", "contract law" and other relevant laws to integrated to be identified.The company in violation of the provisions of article 16 of the external guarantees in essence is unauthorized guarantees. According to article 50 of the "contract law" and article 11 of the security law interpretation,the effectiveness of the unauthorized guarantee contract depends on whether the relative person knows or should know that the unauthorized guarantee behavior. But the guarantee clauses in the articles of association because of the special provisions of law which has a certain external force to the third people. Security right person, of course, one form of this review is limited to review, need not to carry on the examination as to substance. In external guaranty, if security right person to perform the duty of prudent form review its belong to the third person of goodwill, the guaranty contract is effective. If it fails to perform its obligations or found the company's external guarantee is illegal, this time the guarantee right person should not accept the guarantee, otherwise it is malicious, this time the guarantee contract is invalid.