An Analysis Of The Effectiveness Of A Company's External Guarantee Contract Without Company Resolution

With the development of the economic market,the phenomenon of company guarantees is becoming more and more common,but the resulting problems are becoming more and more serious.The company's external guarantee rules stipulated in Article 16 of the current "Company Law" have the following problems in judicial application and academic disputes: disputes on the legal nature and effectiveness of company resolutions;disputes on the legal nature of Article 16 of the Company Law;The standards for determining the effectiveness of the company's external guarantee contract are different;disputes over the review obligations of guarantee counterparties and other issues.In view of the many problems that arise in reality,this article analyzes and discusses the effectiveness of the company's external guarantee contracts from multiple perspectives.In addition to the preface,this article mainly includes three parts:The first part raises questions.Under the provisions of Article 16 of the current Company Law,there are great differences in opinions between academia and judicial trials.Due to the different understanding of Article 16,Article 16 of the judicial trial is a compulsory regulation of management,which is different from the inside and outside,and does not have binding force on the third party.The company's external guarantee contract is effective in principle.Typical cases include the case of a contract dispute between China Merchants Bank and Zhenbang Group in 2014.Academia,on the other hand,thinks that external guarantee contracts are invalid in principle.Article16 Restricts the legal representative's authority.Without unauthorized guarantee of unauthorized resolution,only the representative can be deemed as a contract valid,otherwise it is invalid.The second part mainly analyzes the factors that affect the validity of the contract.First,the company's resolution is incorporated into a civil legal act,and the effectiveness of the resolution affects the effectiveness of the guarantee contract;second,if it is determined that Article 16 of the “Company Law” is a forceful or regulatory mandatory provision.This determination completely abolishes the legislative purpose of Article 16,and is also not conducive to the protection of company shareholders,especially small and medium shareholders.More importantly,it is not conducive to the protection of the benevolent counterpart and the protection of the company's own interests.On this basis,this article believes that the nature of Article 16 should be discussed from the perspective of the legal representative's unauthorized representative.Combining with the provisions of Article 50 of the Contract Law,the guarantee without the company's resolution is the legal representative's unauthorized guarantee.If the legal representative constitutes an apparent representative,the company shall bear the responsibility first,and then recover the related personnel of the company,such as the legal representative or other actual controllers,other agents,etc.,this is also to protect other shareholders of the company,especially small and medium shareholders At the same time,this view also coincides with the provisions of the "Nine Minutes",which is more conducive to the company's daily operations and the security and stability of the market economy.Thirdly,regarding the review obligation of the counterpart,dialectical analysis of the review obligation of the counterpart is also the key to solving the problem of guarantee effectiveness.At present,almost most scholars and judicial trials consider it as an obligation of formal review,but the content and specific standards of the review are still different.In particular,the viewpoint of the burden of proof of the counterpart may affect the economic market.The third part is to improve the validity of the contract and further regulate the market.The effectiveness of the contract directly affects the size of the liability of each subject,and the counterparty is directly related to the validity of the contract when performing its review obligations.In order to maintain the balance of interests in the economic market,when studying the review obligations of the counterparts,in addition to a more cautious review,the company's governance should also be increased.The company is the most important subject in the economic market.Only by standardizing the company's standard operation and the external guarantee operation system can it ensure the rapid and efficient development of the market economy.After a detailed discussion,this article combines laws and relevant judicial interpretations to improve the rationality of the company's external guarantee system and ensure the fairness and justice of the case handling,thereby improving the theoretical study of the company's resolution of the guarantee effectiveness for shareholders without resolution.