The Effectiveness Of The Company Guaranty Behavior Research

About the effectiveness of the company guaranty behavior identification is not a fresh research topic,has been a academic focus on the problem;Not only that,but also popular in practice.External guarantees today,the company has gradually become the important guarantee of company financing means,and the circulation of goods,its help firms aintain market order and company business reputation to establish at the same time;Also in romoting,prosperity,security market has the incomparable value advantage.Throughout the research works related to the subject,view is various and did not form a unified conclusion.Especially after the new "company law" promulgated in 2005,1993,the company law of the provisions of the guarantee system has been completely changed.To this end,scholars began to focus on the current "company law" article 16 specification properties analysis as a starting point for research.Since then,raised one academic through normative qualitative identification to determine effective guarantee behavior of ideas.However,by the way of thinking to determine the purpose of effective guarantee behavior often backfire,so the identification rules as not only failed to determine effectiveness to be constructed for the role of,but about the law and intuition some order of stable and peaceful life value function.In the face of theory and judicial practice,the author try to through the legal norms applicable value accuracy,weigh the fairness and judge the correctness of the result to review existing recognition rules of deficiencies,thus the academe to the prevailing view of the existing deficiency and thinking and review,external guarantees for the company especially when unauthorized guarantee effectiveness render a research contribution.For this reason,this paper by analyzing the summary on different periods of guaranty law,comparison in different periods will on the issue of laws and regulations,from a macro perspective of interpretation of guarantee behavior at the same time,through the retrieval,combing the supreme people's court in the judicial practice according to the problem of the position,the path of explanation,applicable law,the validity cognizance,review obligation and responsibility of the key problems such as held different judicial attitude and position,confirm this topic in theoretical and judicial opinions vary on the referee is not uniform in photograph echo.Therefore,for the purpose of this research is trying to reach a consensus on the theory of the meaning of thought unified applicable law and guiding the judicial practice to provide theoretical support.Secondly,the paper decided by both the company guarantee behavior rules and explain to comb and analyze and comparison are made on the path,this paper based on the correctness of the applicable legal norms,weeks on ductility of logical deduction,the referee fair rationality of the results,we should abandon the traditional specification properties identification,distinguish between a path that guarantees such as effectiveness,and choose to "representation of the statutory limit of representation said restrictions" to determine rules and quoted "contract law" article 50 [.The law of the People's Republic of China contract law "article 50: the legal representative of the legal person or other organization,the head of beyond the scope of authorization,enter into a contract,in addition to the other party knew or should have known that its beyond the scope of authorization,the representative behavior effectively.] The correct path as guaranty recognized company behavior.Again,under the rules of the identification,because trading counterpart [trading counterpart or secured creditors,hypothec person] " kindness " and standard to judge and identified with correlation among guarantee effectiveness.And presumption of goodwill from whether the other party knew or should have known that representative has the representation,namely whether the scope of authorization review representative.Therefore,it is necessary for trading counterpart examination were discussed through examination obligation determined to eliminate the secured creditors have malicious suspicion is key to judge a core guarantee effectiveness.Only in the secured creditors kind without fault is not condemned morally and legally responsible for the premise,that is not of imputation law to guarantee contract effectiveness.Finally,the paper by discussing the targeted company external guarantees the efficacy especially the effectiveness of the guarantee behavior of unauthorized behavior problems,and then discusses the responsibility after the contract is invalid.For judicial practice,the court often cited " security law judicial interpretation " article 7 [the supreme people's court about the applicable law of the People's Republic of China on the security law ",the explanation of some issues of article 7: the main contract and guaranty contract is invalid,without fault of the creditor,the guarantor and the obligor of the main contract economic losses,it shall take several and joint liabilities;creditors,the guarantor has fault,the guarantor shall bear civil liability part,should not be more than half of the debtor is unable to repay part.] to determine the specific responsibility of invalid guaranty contract;On the basis of the conclusion is the debtor is unable to repay part of the half responsibility company.For this,the author thinks that in the void,the legal representative under the condition of excessive guaranty contract,the company does not own responsibility,the company is not their responsibility,also not be liable to replace,advised on the provisions of the applicable unauthorized agency by hypothec person and the legal representative according to their respective fault of contracting negligence responsibility.