Research On The Effectiveness Of Company's Guarantee

The external guaranty of company means the behavior of the implementation,namely,the company under its credit or specific property,providing a guarantee for realizing the outside creditors' right.The external guaranty of company plays an important role in enhancing market credit,promoting the financial intermediation and ensuring the creditor's right,meanwhile it could also disturb the normal development of the corporation.China's legislation on the external security of company has gone through a gradual process from the tighter rein to the limited control.Article 16 of the Company Law of 2005 stipulates that the legal effect of providing guarantees for others is not explicitly violated.Article 50 of the Contract Law also stipulates the effect of the legal representative's ultra vires.The vagueness of legislation stipulates that the practice circles of the academia are controversial on the application of specific laws.It is difficult to reach a reasonable and unanimous understanding on the effectiveness of the guarantee and the effectiveness of the external guarantee contracts.Resulting in the external guarantee contract that there are effective,invalid and effective to be a variety of forms of effectiveness.The long run,it will undoubtedly reduce the judicial credibility and legal authority.The company as a social organization,through the representative or agent on behalf of its implementation of external civil activities.This paper mainly studies the effectiveness of the legal representative or senior management of the company and other staff overdue external guarantee.Article 16 provides that it is a mandatory requirement in nature and is a specification of the internal resolution procedure of the company's guarantee.It is intended to require the directors,managers or controlling shareholders to provide guarantees in accordance with the provisions of the company Law and the Articles of Association,rather than the judgment according to the guaranty contract effectiveness.The relative does not have the obligation to go deep into the company's internal representative or agent.The relative person undertakes to review the obligation to be lawless,without practical operability.The relative review obligation is also irrelevant to the external validity of the articles of association.Representation of an act or an act of proxy is a legal consequence of acting or acting on behalf of the company,not an external guarantee contract.In the light of the provisions of the General Principles of Civil Law,the legal representative shall provide the guaranty in the name of the company,and the representative acts shall be effective and have legal effect on the company.The company can prove that the relative person knows or should know that the legal representative is beyond the authority and the representative acts are invalid,The company does not assume the guarantee responsibility.If the legal representative and the relative person conspire to collusion with the contract,damage the interests of the company,the representative acts are invalid,the company does not assume the guarantee responsibility.Executives and other staff members to provide security in the name of the company,more than authorized power of attorney,are not authorized,the company to suspend,the agency acts on the company legal effect;the company refused to pursue,the agent does not take effect on the company.The relative person has reason to believe that executives and other staff have the right to act,the establishment of the table to see agents,agency behavior is valid,the company should bear the responsibility for the guarantee.The company has the right to executives and other staff members have no right to sign the guarantee contract behavior to be recognized or denied,and have the corresponding legal consequences.Executives and other staff and the relative malicious agreement to establish a security contract,damage the legitimate interests of the company,the agency act is invalid,the company does not assume the responsibility for the guarantee.