Research On The Legal System Of External Guarantee Of Chinese Companies

With the continuing development of society and economy,various parties in capital market have an expanding fund demand,and guarantee has become a very important measure.The corporate guaranty is the natural legal capacity of the company,it conforms to legislative intent of the company law to encourage and promote transactions,and eases company`s financing problems,as well as,satisfies the objective needs of the company in participating in the market economy.External security system has important positive significance on the flow of funds and rational allocation of resources.However,providing companies to creditors also poses a great risk to the company's business development.he 1993 Companies Law restricts the external guarantees of the company in Article 60(3).However,because the provisions of this article are too simple,the applicable disputes in the judicial practice concerning the Article continue.Article 16 of the Company Law of 2005 provides more detailed provisions on the external guarantee system of the company.Affirmed the company's external guarantee ability and the guarantee procedure of the foreign guarantee,etc.However,there is no clear stipulation on the contract validity and the decision-making procedure of the company's articles of association and the external guarantees of the company,which has aroused the discussion between the academia and the practitioners.Based on the comparative study of foreign experience,this article based on the actual situation in our country and the existing problems,to make recommendations to our country's external guarantee system.This article mainly includes five parts.The first part is the introduction.It puts forward the research background and the significance of the topic,combs the research status at home and abroad,introduces the research methods and ideas of this paper,expounds the innovation points and shortcomings of this article.The second part is the explanation of the theoretical basis of the legal system of foreign guarantee in our company,first of all,the definition of the concept of the company's external guarantee and the difference from the personal guarantee;secondly,the significance and risk of the legal system of the company's external guarantee,which is mainly to save the interests of the shareholders and creditors as well as to add to the external security of the company.It also has the advantages of promoting financing and promoting business transactions and winning business opportunities for the company.It analyzes the legislative value of the legal system of foreign guarantee in our company.This paper expounds the value orientation of the legal system of the external guarantee of the company,consummates the relevant legislative provisions of our country.The third part is the analysis of the current situation of the legal system of external guaranty in our country and the existing problems.The first is to investigate the legislative evolution of the legal system of foreign guarantee in China's company,including the provisions of the company law in 1993,the legal system of the company's external guarantee,the company law in 2005,which affirms the company's external guarantee capability,clear that the company's foreign guarantee legal system is stipulated by the articles of association,decision making institutions and decisions.The provisions of the procedure,the guarantee limit and so on.Secondly,there are some problems in the legal system of foreign guarantee in our country,which mainly include: the nature of the law is not clear,the company's foreign guarantee decision procedure is defective,and the legal system of the company's external guarantee lacks the protection of the third party and the small and medium shareholders.The fourth part,from the perspective of comparative law,examines the legal provisions of the external guarantee system in Taiwan and abroad.First,the legal model of the company's external guarantee capability is compared,including three modes: "principle prohibition,exception permission","principle permissible,exception prohibition" and "complete permission".Then the other provisions of the two legal systems on the company's external guarantee are commented respectively.The fifth part is the improvement suggestion of our country's legal system of external guarantee.Based on the value orientation of balanced protection,based on the problems existing in our country,it is believed that the system of the accountability of directors in the company's external guarantee is established,the role of the board of supervisors and independent directors is played,the relevant legal provisions of the articles of association of the company are perfected,the examination obligations of the third people and the limits and scope of the examination are clearly defined and the differences in different circumstances are distinguished.In order to improve the legal system of foreign guarantee in China,we should start with the following aspects: the validity of the contract.