Empirical Reseaarch On Corporate Guarantee System Analysis Based On Article Sixteenth Of The Company Law

As a lubricant of economic development,guarantee system plays an important role in the development of modern economy.Since the company law has been established in 1993 to limit the security of the company,the issue of the effectiveness of the company's external guarantee has always been controversial,and the results of theoretical research and judicial practice are not entirely consistent.In 2005,the company law of our country has revise the company guarantee system again.Although compared with the previous regulations,it seems that the company's external guarantee is clearly defined and the restrictions on the guarantee have been loosened,but the related issues are still in dispute in the theoretical and judicial practice.Such as the definition of the sixteenth legal norms of the company law,whether the creditor has the obligation to review the articles of association of the company or the resolution of the shareholders(big),how to examine the obligation to review,and the company's guarantee power when the articles of association do not specify the guarantee,and should be made up of the stock when the articles of association are absent.The eastern conference or the board made resolutions.At present,more research results in the theoretical circle are from the purely theoretical point of view,and the empirical research results of the company guarantee system are not much,but the existing empirical research results are too old and the sample data are too few.This paper adopts the empirical research method to collect the latest 145 case data,and combines the existing theoretical research and judicial practice,and makes an empirical study on the controversial issues in the theoretical and judicial practice.Through the study,it is found that the nature of the sixteenth articles of the "company law",which is controversial in the theoretical circles,has been basically clear in judicial practice.In judicial practice,it is generally considered as a managerial norm rather than a standard of validity.However,the opinions of the theorists and the judicial practice are quite different about whether the creditor has the obligation to review,and what kind of obligation of the creditor in the form of the creditor.There is no big dispute about whether the company has a guarantee ability when the articles of association discussed in the theoretical circle do not stipulate the guarantee.It is generally believed that the company has the security ability in this case.In the theoretical field,the question of the absence of the shareholders(large)or the board of directors in the absence of the company's security issue in the company's articles of association is rarely seen in the judicial practice,and the courts generally pay more attention to the validity of the security resolution,but rarely pay attention to the question that the security resolution should be made by the agency.At the same time,when studying the case,we found that when the court tried the company guarantee case,there was a lack of understanding of the "mandatory norm" and the wrong citation.According to the study,I suggest that: first,the sixteenth articles of the company law should be defined as a managerial mandatory norm;second,the creditor should have the obligation of formal examination,but should not examine the articles of Association;third,the company still has the security ability when the company's constitution is absent;four,the court should standardize the term.