| Guarantee system provides funds for the development of the country,double insurance for the realization of creditor’s rights,and promotes the prosperity of market economy.Similarly,the existence of the company guarantee system also provides many direct or indirect benefits for the development of the company,but the drawback of the system is that it puts the company’s assets in a risk of joint and several liquidation.It is also the particularity of the system that determines the complexity of its application in practice.Although China granted security rights to companies in 2005,it also put forward some procedural restrictions.This system is a combination of "empowerment" and "restriction".Its dual characteristics are the source of controversy in judicial practice.This paper argues that three main problems need to be solved to correctly identify the validity of unauthorized guarantee contracts: first,the normative nature of legal provisions on corporate guarantee;second,the external validity of articles of association and resolutions;and third,the duty of care of creditors.In the understanding and application of the legal norms of corporate guarantee,this paper uses the case analysis method,and considers that the norm is the internal settlement procedure of the company,only adjusting the internal legal relationship of the company.The normative nature of this clause does not affect the validity of the company’s external behavior.In determining the validity of an unauthorized guarantee contract,it is also necessary to incorporate relevant legal provisions such as contract law.On the issue of the external validity of articles of association and resolutions,through comparative analysis and other methods,this paper holds that at present,China has a negative attitude towards the external validity of articles of association and resolutions.With regard to the duty of care of creditors,this paper makes a comparison and analysis between the general provisions of civil law and the provisions of contract law.The former defines the contractual limitation and legal limitation,stipulating that the contractual limitation of the company can not confront external creditors,while the latter only stipulates that "beyond the limits of authority" does not subdivide the contractual limitation and legal limitation.Specifically,in the 16 articles of the Company Law,this article holds that the first paragraph is the agreed limitation,and the second and third paragraphs are the legal limitation.Combining with the relevant provisions of the General Principles of Civil Law,it is concluded that creditors do not have the duty of care in non-related security.However,due to statutory restrictions,external creditors have the duty of care.According to the performance of creditor’s duty of care and other factors,we can judge "good faith" and then determine the validity of the contract.The first part of this paper mainly discusses the legislative overview and trial practice of corporate guarantee,including the legislative status quo and the evolution of the law.By studying the legislation of the company guarantee system in China and combining with the current legislative situation in foreign countries,the purpose is to draw a general rule about the system,so as to help explain Article 16 of the Company Law.Through the analysis of our judicial practice,in order to obtain the best way to solve the problem.The second part of this article mainly elaborates on several disputes about unauthorized guarantee contracts.Firstly,it explains the normative nature of the relevant provisions of the Company Law;secondly,it explains whether the internal documents such as the articles ofassociation of the company have external effect;finally,it discusses whether creditors have the duty of care and the specific determination of the duty of care.The third part is mainly to determine the creditor’s "good faith",based on which the effectiveness and liability of the company’s ultra vires security contract are analyzed. |
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