On The Examination Obligation Of The Counterpart In Chinese Company Guarantee

Corporate guarantee has always been a topic of widespread concern in the field of theory and practice.The early legislative and judicial practice in our country only adopted the absolutely invalid attitude and completely killed the effectiveness of the company guarantee,but the company guarantee behavior under normal circumstances is obviously beneficial to the development of the company,so the protection of such invalid attitude did not fundamentally face up to the independent value of the company guarantee behavior.In recent years,the chaos of the company's unauthorized security has not been effectively resolved,although this kind of behavior seriously threatens the interests of the company and its shareholders,it is difficult to effectively curb it through external coercion or the company's internal governance.The company's “natural” internal conflicts of interest are unavoidable,and because the business sector upholds the principle of efficiency,the law is not appropriate to impose excessive mandatory requirements,and the risks of company guarantees still need to be guarded by the legal parties themselves,so the company's guarantee counterpart,which is in a superior position compared to the company,can be the subject of appropriate preventive measures.As far as the actual basis is concerned,Article 16 of China's "Company Law" not only externalizes the effectiveness of internal resolutions of the company,but also reserves space for the counterpart guaranteed by the company to perform its examination obligations,as opposed to the previous negative legislation,it shows that the legislator hopes that the counterpart will have more initiative in the company's guarantee transactions,so as to curb the harm of the company's unauthorized guarantees;correspondingly,the legal position of the counterpart in the company guarantee is dominant,and as a rational subject in the commercial field,due to the authority of the law and the importance of the company guarantee itself,the counterpart should take a cautious attitude to fulfill its minimum examination obligation,this is the substantive significance in the consideration of the concept of fairness,the balance of interests between subjects,and the degree of fit of the business environment.Sorting out the relevant legislative documents of our country,no matter in the form or content of the legislation,it is difficult to guarantee the reasonable application of the counterpart's examination obligations,but it leads to different decisions of the judge and disrupts the fair settlement of the company's guarantee disputes;in judicial practice,first,the judge did not follow the classified legislative model in the company's legal norms on the specific adjudication path,and ignored the internal and external distinction of the type of company guarantee;secondly,different cases have a certain degree of particularity,as a general rule,it is impossible to reach a unified conclusion on the determination of the specific content of the counterpart's examination obligations,and there is no absolute reference standard.However,the actual judgment shows that when the judge determines the content of the counterpart's examination obligation,he cannot reach a consistent understanding even in the scope of including specific consideration factors.For example,starting from the subject of the legal relationship of the company guarantee,on the one hand,different types of companies,including non-listed companies and listed companies,have their own uniqueness in the integrity of corporate governance and the publicity of information;on the other hand,based on their different identities,the counterpart guaranteed by the company must have a gap in the examination ability and the corresponding cost,which should also be taken into account when confirming the specific content of the counterpart's examination obligation.Some judges believe that the differences in the main factors listed above are not sufficient to affect the judgment of counterparts on the content of examination obligations,such rigid judgment standards are obviously not conducive to the system to play its substantial role;finally,some of the contents of the judgment conclusion are not feasible in reality,such as the examination of the company's articles of association,although theoretically conducive to the protection of the subject's rights and interests,it is obvious that the examination of the company's articles of association has no practical utility due to the invalidation of the principle of ultra vires.Therefore,in accordance with the requirements of "reasonability",the corresponding content should be improved from both the legislative and judicial aspects,comprehensively considering the various factors,establishing the practical application of the counterpart's examination obligation in company guarantees,and preventing deviations from its real intention,in order to protect the balance of interests between the subjects of the company's guarantee legal relationship.