On Effectiveness Of Corporation Guaranty

On the question of how to maintain company's external guarantees effectiveness,academic discussion has never stopped,and different courts in judicial practice are based on different understanding of the referee case,leading to the application of justice is not uniform,causing much controversy.The article takes the silver big company guarantee case as the research object,and based on the case,the author hopes to analyze the theoretical research and judicial practice experience and analyze;the company guaranty system in China,and combining with the legislative situation in our country,aiming at the problems in the applicable law,propose suggestions on consummating our country company guaranty legal system.Silver big company guarantee case dispute focus mainly concentrated on the three problems,and one is the company's external guarantees effectiveness of judicial referee path problem,which is first determined the nature of the company law of article 16,and then according to article 16 was directly determined by the properties of guarantee the effectiveness of the contract;Other is the provisions of the contract law of the People's Republic of China which shall apply directly to the provisions of the contract law of the People's Republic of China to determine the validity of the guarantee contract.However,the two paths all ignore the specification of article 16,and serious to protect the interests of creditors,the right company guaranty decided the path which should be the special properties of external guarantees from the company,from article 16 the specification of the purpose and specification object to explain article 16,and balance the multiple legal interests,using analysis method of system explanation related laws;The second issue is the company's articles of association guarantees confrontation the effectiveness of the security right person problem,and guarantees to the articles of association of the company to meet the company's articles of association of the conditions of expansion.With the effectiveness of the world,in the current our country under the condition of imperfect laws and regulations,should distinguish between different situations that the organ external guarantees the validity of the stipulated in the articles of association,and clearly when the absence is recorded in the articles of association of external guarantees shall have the right to authority;Thirdly,whether people have a security right review obligation,matching the risks and benefiting from the point of view of interest measurement and between the parties,hypothec person should undertake the obligation to review form.The security right person to fulfill its obligations in the process of review form,should through these measures such as the reasonable allocation of the burden of proof,and modify company registration and filing system,and a unified security right people of goodwill standard,and perfect the people's security right to safeguard the legal consequence of malicious security right people form the review an obligation.Unauthorized guarantee issue in the legal representative,it should hypothec person whether to fulfill the duty form of censorship with the related provisions of contract law and corporation law,in order to determine the effectiveness of contract.If the security right is in good faith,see table represents or the rules of agency by estoppels,the guarantee contract is effective;If it is not in good faith,there is no right to proxy rules.And through the systematization explaining the relevant regulation,the specific identification contract is valid,invalid and the effectiveness is undecided.If the company refuses to recognize the validity of the guarantee contract,the guarantee contract shall not have any effect on the company,and shall bear civil liability for the unauthorized execution of the contract.The company is not liable for malicious collusion that damages the interests of the company.