The Validity Determination Of Limited Liability Company's Ultra Vires Provision Of External Guarantee Based On The Empirical Analysis

In the context of the modern market economy,companies' provision of external guarantee has become more and more active,even constituted a universal phenomenon.However,the company's external guarantee is a double-edged sword.While providing trading opportunities and gaining additional benefits for the company,it also brings hidden trouble for the protection of the legitimate interests of the company and its shareholders and other creditors.Therefore,companies' provision of external guarantee must be subject to the regulation of laws.The provisions of the Company Law of the People's Republic of China on the company's external guarantee are few,vague and lack of legal consequence elements,which causes the controversy between the theoretical and practical circles about the confirmation of the effectiveness of the company's ultra vires external guarantee,which is not conducive to maintain the authority of the judiciary.Limited liability company has particularity in closure,organization setting and information disclosure.The law does not make special regulation on its external guarantee behavior,which makes it more difficult for judicial practice.Therefore,this paper takes the limited liability company as the research object,mainly adopts the method of empirical analysis,through the retrieval of the latest cases,summarizes some regularity in the judicial process,and thus tries to provide some references for the improvement of the identification path of the external guarantee effectiveness of China's limited liability company.Aside from the introduction and the conclusion,this body of this paper is divided into four parts:The first part gives the description of the present situation of judicial judgment on limited liability companies' ultra vires provision of external guarantee.With “PKULAW” as the underlying database,by searching the keywords “provision of external guarantee” and“companies' provision of external guarantee”,the author collected 120 cases of disputes from limited liability companies' provision of external guarantee,analyzed the present situation of the judgment reflected by the 120 sample cases,and concluded the judicial ground concerning such problems in practice.The second part is the summarization of problems existing in the validity determination of limited liability companies' ultra vires provision of external guarantee.In this part,theauthor summarized three major problems in judicial judgment,namely: differed determination of validity for such situations as not approved by resolution of the board of directors or the shareholders' meeting;differed cognition of the duty of examination of the secured party,and;unreasonable distribution of legal liabilities after finding the guarantee invalid.In the third part,the author analyzed the factors affecting the validity of the company's contract of external guarantee.Firstly,the comprehension of the border of company autonomy influences the balancing of the validity of companies' provision of external guarantee;secondly,differences in companies' internal and external legal relations also influence the judgment of companies' provision of external guarantee;finally,the proper examining duty of the secured party is the critical factor to the determination of the validity of companies' ultra vires provision of external guarantee.The fourth part provides the analysis of the approaches to improve the validity determination of limited liability companies' ultra vires provision of external guarantee in our country.The author proposed different rules for the determination of validity against the ultra vires provision of external guarantee under different situations separately,and concluded the rules above from the perspective of the thinking of the judge in judicial practice so as to provide reference to the practice in return.