Study On The Examination Duty Of Creditors In Corporate Guarantee In China

Company guarantee is a common commercial act in the process of company operation.With the development of market economy,China's "Company Law" has changed its attitude towards company guarantee from strict prohibition to limited permission.However,due to the unclear provisions on the validity of guarantee contracts in Article 16 of the Company Law,there is no uniform identification standard in judicial practice.Through sorting out and analyzing the relevant company guarantee cases listed in the websites of China's judicial documents network in the past three years,the article finds that our country's courts at all levels place too much emphasis on protecting the interests of creditors and do not pay attention to protecting the rights and interests of the company and its shareholders.The court has some deficiencies in determining the validity of the company's ultra vires guarantee contract,especially ignoring the creditor's duty of care as the counterpart of rational transactions and its subjective goodwill or malice.In order to fully protect the balance of the interests of both parties to the contract,the law should stipulate that creditors perform formal examination obligations and do not undertake substantive examination obligations.The legal consequences of the creditor's failure to fulfill the obligation of examination should be identified as non-bona fide counterparties,and the legal liability for ultra vires guarantee should be attributed to unauthorized agency.The guarantee contract can only be valid after ratification by the company.The legal consequences should be borne by the actor and creditor for ultra vires guarantee according to their fault.