The Perfection Of The Affiliate Security System In China

Throughout their lives,companies have been doing three things: operation,investment,and financing.As a financing mechanism,connected guarantees reduce corporate information risk and debt agency risk and reduce the company’s debt financing costs.They are widely used by companies in financial distress.Article 16 of China’s "Company Law" stipulates the rules and procedures for the company’s related guarantee,but it does not specify the legal consequences of violating the rule.What path should be taken to evaluate the effectiveness of the contract and whether the counterparty has a review obligation? Also,the scope of the review and the review criteria are not clear,which has led to fierce discussions in the academic world,and judicial rulings have been particularly confusing.In order to truly realize the legislative purpose of regulating related guarantees,promote the healthy development of related guarantees,and bring hope to the enterprises that really need financing,the related guarantees are selected as the research object.First of all,sort out the relevant provisions of the Company Law on the issue of related guarantees,introduce the specific provisions of the current company law on issues such as the scope of the guaranteed subject,the resolution organ and the rules of the related guarantee,and point out that the existence of the company law on the design of the related guarantee system through theoretical analysis.The subject scope of related parties is not uniform,and the scope of application of the exclusion mechanism of interested parties’ voting rights is small.During the writing process,the Supreme People’s Court issued the “Minutes of the National Courts’ Civil and Commercial Trial Work Conference”(hereinafter referred to as the “Conference Minutes”)to make several important provisions on the company’s external guarantees.In view of this,combining the dual perspectives of theory and practice,to demonstrate the “Conference Minutes” on related guarantees.The legal validity of the legal representative’s ultraguarantee guarantee and the determination of the thinking,the counterparty’s review obligations,and the scope of the review are reasonable.Regrettably,the “Conference Minutes” did not provide for the issue of the effectiveness of the company’s guarantee of equity transfers among shareholders,making such issues unresolved in practice.In addition,it did not distinguish between the types of companies and required different examination obligations for counterparties.The review requirements for closed companies will expose listed companies to huge potential risks.In addition to studying the institutional requirements and problems of related guarantees,in order to examine the situation of related guarantees in judicial practice,the judicial big data method was used to screen out the Supreme People’s Court decisions involving related guarantees in the past ten years as sample cases.The data shows the general trend of the contractual effectiveness of related guarantees in judicial judgments,the path to determining the effectiveness of contracts,whether the counterparty has a review obligation,and the overall trend of the degree of review.At the same time,the analysis of sample data indicates that there is no normative attribute in current judicial practice.The judge splits the relationship between the law,whether there is a review obligation,the degree of review is unclear,and the judge focuses too much on commercial efficiency.Finally,on the basis that the relevant provisions of the “Conference Minutes” have resolved the aforementioned issues,corresponding suggestions are made for the existing problems in the company law,the “Conference Minutes”,and judicial rulings of the related guarantee system.