The Application Of Rules Of Company's External Guaranty Exceeding Authorization

As the most important part in the market economy, the company is of great significance to the development of the whole market economy. The company provides a guarantee for the third party's debts with its specific property or credit.However, how about the validity of the contract when the company beyond the authority to provide guarantees? The provisions of the 2005 "company law" has already been changed, which admitted the ability to guarantee and guarantee the company's external effect, increased the autonomy of the company in guarantee,expanded the scope of the guarantee, improved the relevant procedures, and improved the legal status of guarantee provisions throughout the company. But because the provisions are still unclear, the judgment about the validity of external guaranty exceeding authorization contract is more complex than the article 16 of Company Law. There are many problems to be discussed. Company Law article 16 decided the guarantee decisions organization and set down procedures. Although these provisions aim to restrict the chaos concerning company guaranty, they enhance the difficulty of judgment of external guaranty exceeding authorization. Thus, the disputes between scholars and judges existed. On one hand, the court system has different opinions concerning validity confirmation of external guaranty according to Company Law article 16, even the judges from the same court have the different opinions, or based on different legal basis. One the other hand, the scholars enter into endless argument concerning the nature of article 16, effective compulsory norm or administrative compulsory norm; if they are only in force within the company, if the creditor is responsible for the review of relevant materials.In view of the company's external guaranty exceeding authorization is important to Company Law practice and may lead to problems, this article wants discuss concerning validity of external guaranty exceeding authorization. I will analyze this question combing the real cases.The article is divided into the following five parts:The introduction of this article will introduce a case published by Supreme People's court and raise the following questions: Firstly, when the company breaches the Company Law article 16, whether the contract is valid or not; in the other word,the article 16 is effective compulsory norms or administrative compulsory norm;Secondly, if the creditor is responsible for the review of relevant materials. It does, it is kind of formal review or substantial review. Thirdly, if the decision-making organ is not stipulated by article of incorporation, then how the make the contract valid.The chapter one is mainly to define the related concepts, including the concept of external guaranty and external guaranty exceeding authorization. Then to put forward the problems to be solved. Because of the uncertain validity of external guaranty exceeding authorization, leading to academic theory and judges enter arguments, and thus also appeared not a referee, which seriously damaged to the authority of the law.The chapter two is to discuss the different opinions concerning external guaranty exceeding authorization at home and abroad, including validity theory, invalidity theory and distinguish theory.The chapter three is to explore the nature of article 16. , not only identify from the perspective of interpretative, but also from real case form Supreme People's Court,the administrative compulsory norm. If the company breaches the article 16, the contract is not certainly invalid.The chapter four dealt with the problems combined with the case from Supreme People's Court. Including the case mentioned in Chapter one.The Chapter five is the conclusion of the whole company and to put forward the improving suggestions. If the legal representative, directors and senior management guarantee for the third party exceeding authorization, the case shall apply apparent agency principle and find out if the third part acts in good faith. As the main participant in the marketing, the survival and development of the company cannot be separated from the guarantee system. Although the relevant laws are improving, there are still many problems are needed to be discussed.