Study On The Validity Of Guarantee Outward Judgments Of Limited Liability Company

The "Company Law" promulgated by China in 1993,Prohibit directors and managers from providing external guarantees for company assets.But the external guarantees are very common in economic communication,so that indiscriminate protection often appears in judicial practice.Article 16 of the current "Company Law"stipulates the procedures,principals and limits of the company's external guarantees.At the same time,it provides special rules for the company's guarantees for shareholders or actual controllers of the company.(This clause is amended in 2005.It did not change when the "Company Law" was amended in 2013.)The amendment to Article 16 of the current "Company Law" has played a mitigating role to the extent that the company's over-insurance phenomenon is to a certain extent.However,Article 16 of the current "Company Law" lacks a clear stipulation on the legal consequences,which has caused uncertainty about the application of the provision in the administration of justice.Specifically,there are different logics of judgement between courts in judicial decisions.Similar cases have different results.The existence of these various phenomena has weakened the authority of the judiciary and reduced the trust benefits brought by the law.This article selects 79 cases of limited liability companies to carry out external guarantees for empirical analysis,which involves detailed statistics and analysis of effectiveness patterns,judgment reasons,and judgment paths.Regarding the determination of the effect of ultra vires guarantee contracts,the effective rate is 86.08%,which has been greatly improved compared with the previous studies by scholars.The recognition of the contract effectiveness of limited-liability companies'ultra vigilance guarantees presents a gradual and effective trend.However,it is worth noting that even if the results of the referees are the same,there are different opinions among the courts.At present,there are mainly three judicial rulings:the normative attribute analysis path,the internal management specification path,and the legal representative's overriding guarantee path.The "Analysis Attributes Analysis Approach" uses Article 16 of the current "Company Law" as a direct method of contract effectiveness judgment.Through the definition of Article 16 legal attributes,it is judged whether the company's overriding guarantee contract is effective.This route accounts for 82.05%of the judicial decisions;the internal management normative path mainly focuses on whether the company's articles of association and board resolutions/shareholders' resolutions have the effect of opening up to the outside world.The proportion of such routes is 10.26%;the legal representative has exceeded the authority.The guarantee route will use Article 50 of the "Contract Law"as the main basis for the determination of the validity of the ultra-guarantee contract.By comparing the composition of the guarantee contract with the legal representative's ultra vires,the effectiveness of the ultra-guarantee contract can be confirmed.The referee ideas account for 7.69%.The court paid more attention to the principle of commercial appearance,emphasized transaction security and protection of the interests of third parties.The current understanding of the legislative purpose of Article 16 of the "Company Law" and the protection of corporate interests need to be strengthened.The disagreement over the limited liability company's ultra vires for external guarantees is mainly concentrated on three levels:the dispute over the property of current Article 16 of the "Company Law",whether the third party has the dispute over the review of the guarantee contract and the violation of the company's articles of association for the company's guarantee.Stipulates whether it can constitute a dispute over the basis of the invalidity of the contractual claims.The reasons for these three main differences are:First,the boundary between mandatory and enforceable articles of management is not clear;second,the current Article 16 of the "Company Law" lacks a clear illegal result;and third,the right to security.There is a lack of standards for people's goodwill.Fourth,the path of judicial decisions is not uniform.In order to resolve this disagreement and achieve the purpose of unifying and juridifying the current Article 16 of the "Company Law",at least four understandings should be achieved.This article believes that:Article 16 of the"Company Law" is a mandatory administrative clause;The trio has formal review duties;the company's articles of association have external effects on external guarantees,and can constrain third parties,and are sufficient to constitute a basis for contract invalidation;balancing the interests of companies and creditors and the value needs of market efficiency,to achieve the "Company Law" The original purpose of Article 16 legislation.The most fundamental solution to the many disputes over the limited liability company's foreign overstepping guarantees is to supplement the existing violations of Article 16 of the "Company Law," and the consequences of invalid liability.However,considering the practical difficulties and complicated procedures for revising the law.This paper proposes three supporting systems to cope with the application of Article 16 of the current "Company Law" and the implementation of the company's foreign overstepping security.We will improve the publicity system of the company's articles of association,establish the third party's review standards and goodwill constituent elements,and establish a company guarantee publicity system.From the source,it helps to clarify the obligations and rights of all parties and establish a unified standard for judicial adjudication.