Study On The Effectiveness Of The Company's External Guarantee

Due to the company law on the company's external guarantee of the relevant provisions are unclear.The problem of the validity of the company's external guarantee is a problem which has been puzzling the judicial decision and the academic circle.The main difference lies in the different recognition of the normative nature of Article 16 of the Company Law.The legal consequences of determining it as validity or regulatory peremptory norm are different.Secondly,whether the articles of association have external effect in the company's external guarantee.Because the articles of association have the right to regulate the company's external security matters.Thirdly,whether the creditor has the validity of examining the articles of association and the company guarantee resolution and how to identify the creditors in good faith and so on.The following analysis mainly includes two aspects:on the one hand,the validity of the company's ultra vires guarantee resolution;On the other hand,the effectiveness of the company's external guarantee contract.The first part is through two related cases to lead to the theme of this article,Zhang Sanyang v.Zhou Enfeng,Ningbo Zhongxin guarantee Co.,Ltd.loan disputes,the court ruled that the company's foreign guarantee contract is invalid.Due to the mandatory provisions of Article 16 of the Company Law,the dispute between China Merchants Donggang Sub-branch and Zhenbang Group Company and Zhenbang Stock Company is invalid,and the Supreme people's Court decides that the company's external guarantee contract is valid.Because Article 16 peremptory norm of Company Law is a kind of regulatory peremptory norm,therefore,violation of its provisions cannot be regarded as invalid.These two cases are both about the company providing security in excess of its authority.Are the company's controlling shareholders without authorization to provide security,without the company's guarantee decision-making organs to vote,the same case court judgment is not consistent.Inquire into the relevant cases.Court decisions in such cases are also adamant,and there is no uniform outcome.The second part is mainly about the relationship between the normative nature of Article 16 of the Company Law and the validity of the company's external guarantee,because the determination of the normative nature of Article 16 of the Company Law has the effect on the resolution of the company's ultra vires guarantee.This part analyzes several academic viewpoints on the normative nature of Article 16 of Company Law.It mainly includes:management norm theory,validity norm theory,compound norm theory and research pointless theory,through the analysis and introduction of these theories.The author tries to analyze the normative nature of Article 16 of Company Law,and defines the normative nature of Article 16 of Company Law from the theoretical analysis of mandatory norm and arbitrary norm.The third part is the analysis of the creditor's obligation to examine.Because whether the creditor has the obligation to examine plays a decisive role in the effectiveness of the external security contract.If the creditor has the obligation to review the articles of association and the company security resolution.The creditor has not fulfilled the reasonable obligation of examination when dealing with the signatory of the contract.To some extent,the creditor is negligent.This part analyzes the circumstances in which creditors have what kind of obligation to examine.The fourth part mainly refers to the determination of the goodwill of the creditor in the company ' s guarantee and the judicial measure of the judgment.The creditor's goodwill determination is closely related to the creditor ' s examination obligation.If the creditor fails to examine the existence of the security resolution provided by the company,the creditor may determine whether the creditor ' s goodwill or not according to the relevant security situation.If the company insists that the creditor is malicious,the company makes the proof that the creditor and the company ' s contract signatory or the controlling shareholder ' s malicious collusion damage the interests of the company,the shareholders and other creditors.