On Judicial Investigation Of Counterparty's Review Obligation Of The Company's Over-authority Guarantee

Since the revision of the Company Law in 2005,disputes arising from the effectiveness of corporate guarantee contracts have never stopped.As one of the reasons for the effectiveness of the contract,the security rights review obligations are also controversial in the academic and judicial fields.The reason is that Article 16 of the Company Law only provides for the company's ability to provide guarantees and the company's internal pre-procedural procedures,but does not stipulate the legal consequences of violating the provisions.Therefore,academic research and judicial arguments centering on the nature of the legal norms of Article 16 of the Company Law have been launched in the academic and judicial practice fields.However,after more than ten years of development,there has been no agreement on the scope of the company's security rights holder's review obligations and the review criteria.In the course of trials in different courts,even the definition of the security party's review obligations between different judges within a court has a diametrically opposed view.In the course of hearing the case,the court has very low requirements for the security party's review obligations.It can even be said that the security right holder has no obligation to review when accepting the guarantee.This judicial status is extremely unfair to guarantor companies,company employees and other creditors.The focus of controversy in academia is mainly about 1.Is Article 16 of the Company Law a validity nor a management norm? 2.Does the company's articles of association have any legal effect as an internal document of the company? Is it within the scope of the review? 3.In the process of fulfilling the review obligation,the security right holder should adhere to the formal review standard or the substantive examination standard.Behind the turbulent judicial referee phenomenon,the property of the guarantor company and the realization of the creditor's right of the security right may faceenormous threats.Based on the urgent needs of reality,based on the existing theoretical research,this paper intends to observe the essential reasons for the disputes of the security rights reviewers in the academic and judicial fields from the perspective of judicial judgment.On this basis,through the theoretical research behind the review rights of the security right holder,combined with the experience of the judicial judgment,a referee path can be found that can correctly and standardize the obligation of reviewing the security right holder.This paper mainly uses the literature research method and the empirical research method to study the following contents.First,the theoretical basis for exploring the security rights review obligations lies in the system of Unauthorized agency of the legal representative of the company.Second,to explore whether the security right holder has the obligation to review and how to determine the scope of the review obligation? According to the provisions of Article 16 of the Company Law and the academic research of Gao Shengping scholars,it can be concluded that the security party's review obligation is a statutory obligation.Regardless of the legal nature of Article 16 of the Companies Act,the determination of the security rights holder's review obligations is not affected.At the same time,according to the provisions of the law,the shareholder(large)meeting of the company or the resolutions of the board of directors and the company's articles of association are subject to the examination of the security right holder.Third,should the security right holder's review obligation adhere to formal or substantive examination? In order to protect the balance of interests between the parties to the contract,adhering to formal review is more in line with legislative purposes and economic development.Fourth,summed up the reasons for the conflicts in the court decisions.Through the research in this article,we can find out the root cause of the frequent occurrence of corporate guarantee disputes.Provide a clear and standardized referee path for the court to hear such cases,and provide advice for the improvement of the law.