Analysis Of The Effectiveness Of The Company's Guarantee For Shareholders And Actual Controllers

The guarantee of the company is the embodiment of the company's rights and capabilities.At present,there are still different views in academia that the effect of the judicial practice in our country for the guarantee of its affiliated shareholders or the actual controller without the shareholders' meeting or the shareholders' general meeting.However,when similar cases in the court,based on the outside to protect the interests of minority shareholders,maintenance company stakeholder interests and market transaction cost considerations,in principle,tend to determine the guarantee is valid.This paper analyzed several typical cases that provide guarantee for its affiliated shareholders or actual controllers without the shareholders' general meeting or the shareholders' general meeting,and summed up the current judicial practice in China that tends to deem that without the shareholders or shareholders of the General Assembly and its associated shareholders or the actual controller to provide a guarantee of effective judicial attitude.On the basis of the above facts,this article analyzed the paragraph 2 in article 16 of the Company Law.The article first affirmed,and then applied the method of the purpose interpretation to further analyze the normative nature of paragraph 2 in article 16 of the Company Law.On the basis of clarifying paragraph 2 in article 16 of the Company Law belongs to administrative,the article demonstrated the reasons that without the shareholders' meeting or shareholders of the General Assembly resolution of the guarantee is valid from three aspects including:external guarantees required by the shareholders' committee or the meaning of the resolution of the shareholders' general meeting,the effectiveness of the shareholders meeting or the shareholders meeting resolution range,and the third person by commercial appearance reasonably reliable protection.At the end of the article,the author explored the company's obligation to review the creditors in the case of the shareholders and the actual controller and its limits.Cleared the creditor has a reasonable form of review obligation when the company provides guarantees to its shareholders or actual controllers.