Research On Mandatory Attachment System Of Corporaate Guarantee

At present,the defects of the company's guarantee system still do not seem to be properly resolved.From the perspective of legislation,the relevant laws have problems of vague expression and lack of operability.In particular,the consequences and responsibilities of violation of laws and regulations are unclear.Judicially,companies that violate laws and regulations have more disputes over autonomy guarantee contracts.The status quo of "different judgments in the same case" and "different judgments in the same court" confirms the impact of legislative defects on judicial activities,and it is extremely urgent to improve legislation.The traditional theory has different opinions on the effectiveness of the company's over-authority guarantee contract,but it has not formed a unified view from beginning to end.There are four main research approaches: one is to judge whether the legal normative property of Article 16 of the Company Law has a mandatory effect;the other is to distinguish the internal and external behaviors of the company and consider the resolution as the internal behavior of the company.Can not affect the effectiveness of external contractual behavior;the third is to discuss whether the security right holder has the obligation to review,and then determine whether it belongs to a protected third-party;fourth is based on the pursuit of value and interests of civil and commercial law,the proposed company guarantee The best behavioral paradigm.However,the existing theoretical research has a strong individualistic methodology,either based on the resolution position or based on the contract position,and often breaks the connection between the two in the way of dealing with the problem.In addition,scholars are influenced by the responsibility model of “post-accountability” in the civil lawtradition,and the value of liability prevention is also ignored.Therefore,consideration should be given to establishing a system to improve legislative defects,to take into account the value of resolutions and contracts,and the occurrence of preventive responsibilities.The mandatory annex system came into being.The mandatory attachment system refers to a system that requires the company to provide a resolution as a necessary annex to the contract in the process of entering into a guarantee contract through mandatory regulations.The system is based on the principle of fairness and honesty and credit of the civil and commercial law.It not only meets the requirements of procedural justice and result justice under the principle of fairness,but also meets the subjective and objective requirements under the credit.According to the theory of commercial liability prevention,commercial responsibility focuses on prevention,and the mandatory attachment system is derived on this basis,and the review procedure is used to avoid risks.In the scope of adjustment,the extension of the mandatory annex system is included in the theory of commercial liability prevention,and minor adjustments are made according to the purpose of the system.In the specific prevention method,the procedural control prevention method of the commercial responsibility prevention theory is adopted,and the company guarantee behavior is regulated by the procedure.When the mandatory attachment system deals with the effectiveness of the company's over-authorization guarantee contract,it claims that the security right holder has the obligation of formal review,mainly based on the comprehensive consideration of the role of efficiency in the secured transaction costs.Considering the current market transaction cost is too large,according to Coase's transaction cost theory,the state intervenes in the effectiveness of the contract,reduces the transaction cost through the pre-specified effectiveness rules,and supervises the perpetrator's norm by the serious consequences of the contract invalidation.Acting.The mandatory attachment system further enriches its content based on the theoretical basis,and refines it by enriching the connotation and then determining the extension.The mandatory annex system is distinguished from other systems by a clear mandatory,preventive and procedural system.The scope of the adjustment framed the limited liability of the limited company and the general security right holder;the object is the guarantee relationship between the company and the security right holder.The procedural,procedural justice,and behavioral paradigms of the mandatory annex system are visually represented in the form of behavioral processes as the “skeleton” of the system.Violation of the system must have corresponding consequences.The mandatory annex system advocates the failure of the contract as the main unfavorable consequence;in the form of liability commitment,it advocates the three types of liability for negligence,compensation for loss and guarantee liability.The judicial interpretation has the status of legal origin,and has the advantage of quickly establishing a commercial guarantee system to deal with the problem flexibly.The content of the judicial interpretation is: the company should provide a resolution to agree to the guarantee when signing the guarantee contract,and the security right holder should promptly review the contents of the resolution.In favor of the proportions,signatures and other formal requirements,if there is no objection to the review,the parties to the guarantee contract shall use the resolution as an essential annex to the contract(paragraph1).If the guarantee contract lacks the necessary annex or the form of the resolution is flawed,the faulty party shall be responsible for the invalidity of the contract(paragraph 2).In the specific application of relevant judicial interpretations,the retrospective power of judicial interpretation should be denied,and the problem should be divided into two according to the time point at which the judicial interpretation is issued.In the disputes that existed before the judicial interpretation was issued,the relevant provisions of the mandatory annex system were used for reference,and the relatives of the security contract were reviewed to see if they had prudential obligations,and whether the company had a malicious situation.Disputes arising after the judicial interpretation is issued shall be handled in strict accordance with the contents of the mandatory annex system.It is recommended that the court judge the effectiveness of the guarantee contract by combining the form of the review resolution,reviewing the performance of the parties,and confirmthe consequences and responsibilities.The application of the mandatory annex system includes not only the application of justice,but also the conduct of the conduct of the perpetrator.After the establishment of the mandatory annex system,the company and the security right holder can use the system as their own behavior reference when entering into the guarantee contract,which is the behavioral paradigm of signing the company's guarantee contract.