A Judicial Empirical Study On The Effectiveness Of Chinese Enterprises' Over-Authorized Guarantee Contracts

Guarantee system is the bridge between financial market and enterprise.It promotes the development of market economy,strengthens the communication between companies and enterprises,and provides more development opportunities for different enterprises.But the company is for profit as the ultimate objective,and its business activities are carried out around the purpose,the company guarantee is not the regular business of the general legal person,can not bring profits to the company.If the abuse of corporate guarantees and malicious guarantees appears,the interests of all parties to the market can not be guaranteed,the company can not operate properly,so the need for legislation guarantees regulated company.For this purpose,the "company law" article sixteenth made provisions in the regulations in effect,but failed to clear the company ultra vires guarantee contract,resulted chaos in the theory and practice,appeared three kinds of views and ideas: ultra vires guarantee contract is valid or invalid and uncertain validity.On the basis of judicial judgment to be determined,all these need to an empirical study on the comprehensive overall.Now the guarantee behaviors of companies frequently happen in the daily business activities,the legal representative of the company often provides guaranty by the assets of the company,it is more serious to the safety of company assets.Is the guarantee contract in force,if the legal representative of the company violates the art 16 of the company law to provide guaranty? In reality,there are many contradictory judgments for the effectiveness of the company's ultra vires guarantee contract,the views of the legal scholars often are different each other.It is a problem worthy to study.This paper focuses on the company's guarantee,that is valid or invalid,through the analysis of the cases of company guarantee in recent years,we find out the factors affecting the company's ultra vires guarantee validity,and through the in?depth discussion,step by step,find the answer.In this process,the author tries to find a way to better to avoid the company's guarantee risk,and to protect the creditors.The paper consists of three parts: introduction,text and conclusion.The introduction mainly introduces the research background,significance,and objective of research status.The text is composed of first,second,third,fourth and fifth chapters.The first chapter is the introduction of the empirical study of the company's ultra vires guarantee,sample selection and reason to the papers of judgment.The second chapter focuses on the classification of the judge's way of thinking.The third chapter focuses on the properties of the article sixteenth in the Company law,by the analyse to find the true intention.The fourth chapter demonstrates the obligations of the counterpart and his scope.The fifth chapter analyzes the agency by estoppel,at last is the conclusion.With some cases occurred in practice,the paper analyses the judicial ideas and the trend in recent years,the author thinks,it influences the effectiveness of ultra vires guarantee,what includes the effect external of articles of association of the company,the authority of the legal representative of the company,the confirmation of the nature of the art 16 of the company law,the effectiveness of the resolution of the shareholders' meeting and the duty of examination of the counterpart.This paper attempts to demonstrate the impact of several factors by force,that the legal representative of the company authority should be restricted and this restriction should be mandatory;Article sixteenth of the company law has the external validity,can bind the third party;in the application of law should insist on systematic explanation,at the same time will bring the full introduction of commercial agent system into the commercial law.Based on the confirmation to the property of the article sixteenth of the company law,can form an effective restriction from internal and external to the authority of the company's legal representative,appropriately increase the creditor's obligation to effectively balance risk between the company and the creditors,protect any participant of social relations interests,prevent excessive damage to a party given special protection,avoid to harm the interests of the other,that leads to the imbalance of social relations,and ultimately achieve the normal standard guarantee,guarantee to prevent malicious.