The Company Has Not Provided A Guarantee For Shareholders To Guarantee The Effectiveness Of The Guarantee

With the revision of the Companies Act of 2005,the company's ability to provide guarantees to entities including shareholders should be unambiguous.Because the"Company Law" sets the procedural clauses for the company's shareholder guarantees to be subject to the resolution of the shareholders' meeting,but does not stipulate the legal consequences of violating the provisions,so that the company's effectiveness in providing guarantees to shareholders,whether in theory or practice There is a big controversy in the world.The focus of the dispute is whether the guarantees provided to shareholders by companies that have not passed the resolution of the shareholders'meeting are legally valid,that is,in accordance with Article 16,paragraphs 2 and 3 of the Company Law.There are always major differences in how the regulations apply.From the typical case of the Supreme People's Court Gazette,it is not difficult to see that there are major differences between the courts at all levels in handling such guarantee cases and the judicial attitudes.The main problems are:on the one hand,the theoretical circles The normative attribute of Article 16 is unclear and there is a big controversy;on the other hand,there are differences in the determination of the validity of the guarantee contract in judicial practice.The key to solving the above problems lies in how to distribute the responsibility in the case of the company's unsecured shareholder guarantee,so as to achieve the goal of balancing the interests of multiple parties and conform to the legislative spirit.It is not difficult to find out through the interpretation of the provisions of Articles 16,2 and 3 of the Company Law.The main purpose is to circumvent the shareholders' intention to seek illegal personal interests and damage the company,other shareholders and even creditors,interest.Although the words "must" and "not"appear in the above-mentioned legal provisions,there is no legal provision that violates the law,which will directly lead to the legal consequences of invalidating the contract,and the confirmation of the nature of each legal norm has an extremely complicated era.Background,when we consider the normative nature of the legal provisions and the applicable rules,we should fully consider the legislative background,the legislative intent of the legislator,the legal benefits that the legislator wants to protect when formulating the law,and the social effects that we want to achieve,if we are only The mechanical judgment of the interpretation of legal terminology and the rules of legislative technology determines that Article 16 of the Company Law is a validity clause,thereby negating the legal effect of the company's guarantee behavior,which will ultimately affect the security of the transaction and the market economy.Stability.With the promulgation and implementation of the General Principles of the Civil Law and the Judicial Interpretation of the Company Law(?),the legal attributes of the company's resolutions have been confirmed at the legislative level,but when discussing the effectiveness of the company's provision of guarantees to its shareholders as legal acts The normative attribute and scope of effectiveness of the company's resolutions should still be reasonably defined.On the basis of recognizing that it is a civil legal act,it should be reasonably distinguished from contractual behavior and joint behavior.In addition,dialectical analysis of the creditor's review obligations is also the key to solving the issue of the effectiveness of the guarantee.In the case that the secured creditor actively performs the formal review obligation,in principle,the validity of the guarantee contract should be recognized.This not only conforms to the principle of balanced risk interest in general commercial transactions,but also urges creditors to actively protect their own interests.Finally,from the perspective of protecting the third party of goodwill,comprehensively consider the legislative purpose,the nature of the resolution,the legal relationship,etc.,combined with the provisions of the General Principles of Civil Law and relevant judicial interpretations,summarizing the judgment rules of the legal representative's effectiveness of the ultra-authority guarantee,and proposing that the company Shareholders provide the basic ideas for the determination of the effectiveness of guarantees,provide more convincing arguments for the effective conduct of guarantees,ensure the fairness and justice of case handling,and thus improve the theoretical research on the recognition of the effectiveness of companies as shareholder guarantees.