Study On The Validity Of Company Violated External Guarantee In The Articles Of Association

At present,corporate financing in China's commercial exchanges has become a normal trend.To reduce transaction risks,the company's external guarantees tend to be widespread.Article 16 of the "Company Law" has clearly stipulated its own agreement on external guarantees.However,due to lack of legal consequences,theorists have focused on the legal nature of their lawsuits."The Judicial Interpretation of Company Law(4)" has not been clearly explained.There is no uniform standard and route for the violation of the regulations on the effectiveness of external guarantees.Although the "General Principles of Civil Law" has responded,the purpose of the regulation is to protect third parties from bona fide intentions.It is essentially a refinement of the original provisions of the"Company Law" and the past.The confirmation of judicial judgment is compared with Article 16 of the "Company Law" and there is no substantive defense.The company's violation of the constitution of the external guarantee contract is due to the fact that Article 1 of the "Company Law" lacks legal consequences.In this case,it is necessary to start with the legislative background and purpose of the clause and define its nature-mandatory regulatory norms;Article 85 of the General Principles of Civil Law,in order to solve the problem of validity recognition,supported and improved the "review of obligations" and clarified the“goodwill and effective" orientation.This interpretation of the legislative background has solved the problem of how to judge the validity of guarantee contracts to some extent.The "overflow effect" of the external guarantee clauses in the charter also reinforces the criterion for the effectiveness of the "review of the obligation to review."The "vacuum" in legislation has caused controversy in judicial decisions,whether it is the different results of court trials-the validity or ineffectiveness of the recognition of a guarantee contract;and the fact that its four different referees'approach has made the validity of the relevant guarantee contract not reach a consensus.Finally,in insisting on the "review of obligation to review" and focus on the validity judgment criterion of subjective attitudes,we started from the perspective of the main body of the resolution,prohibition content,and procedural rules,and conducted a type analysis of the situation of validity and invalidity of the guarantee contract:On the other hand,from the point of view of the“communitarian centralism" legislative model and the reduction of transaction costs,it was demonstrated that the shareholders' meeting would be effective if the board of directors were to violate the terms of the external guarantee;the different modes of thinking of the civil and commercial affairs—the latter More emphasis is placed on the principle of commercial efficiency,and it is valid to judge that the legal representative violates the provisions of the company's articles of association;in order to comply with China's legislative model of "principal permitting and exception prohibition”for external guarantees,it should be recognized that the articles of association do not directly stipulate external guarantees,and shareholders The case where the board of directors and the board of directors has made the resolution is valid;from the perspective of the "good faith" third party's trust interests,it is valid to conclude that the guarantee resolution procedure or the voting procedure violates the provisions of the company's articles of association.On the other hand,from the perspective of the "overflow effect" of the Board of Directors not having the relevant authority and the external guarantee terms of the Articles of Association,it was concluded that the Board's violation of the provisions of the Articles of Association that should be subject to external guarantees by the shareholders' meeting was invalid;from respecting the Charter's autonomy and protection From the viewpoint of the interests of small and medium shareholders of the company,the company's articles of association prohibit the company from providing insurance,and the shareholders ' meeting or the board of directors' violation of the provisions of the guarantee shall be invalid;starting from the legitimacy and feasibility of the counterparty's obligation of formal inspection,the transaction counterparts It is reasonable to know the limit of guarantees specified in the charter.The subjective aspect does not have a point of goodwill.It is invalid to conclude that the guarantee limit violates the provisions of the company's articles of association.