A Typological Case Analysis On Examining Obligation Of Counterparts In Corporation External Guaranty

Activating and accommodating capital are necessary for the developm ent of modern companies.Corporate guarantees guaranteeing loans is inevitable irregular business activities.However,at present,the company's external guarantees are in disorder,which brings great potential threats to the company's capital security.According to the Supreme People's Court's judgments of corporation external guaranty cases in the past five years,in most cases the courts upheld the guarantee contract on the basis of Commercial Rechtsschein and the principle of promoting efficiency of tra nsactions.However,there are five different views to judge the validity of this contract in academia and judgment.It makes confusion in theory,moreover it makes the judgment more complicated and the different judgments in the same situation.Corporate decision comes from the collective decision formed by the boards of stockholders,directors and supervisors.The company's external intentions mainly depends on the organ of expression of intentions-the legal representative of the company.Article 16 of the Company Law stipulates the procedures for the formation of a company's collective decision.The violation to this article causes resolution defects internally,while externally it is the unauthorized agency or apparent agency formed by the legal representative due to resolution defects.Article 50 of the Contract Law indicates that the other party of the contract must fulfill the necessary duty of care in the case that the rights of the legal representative are limited,from which comes the examination obligation of the counterpart.Article 16 of the Company Law and Article 50 of the Contract Law combined with the "limited legal representative's right of representation" is reasonable and should be taken as the judgment standard of such cases.As for the scope of counterpart's examination obligation,the cases selected only include the decisions of boards of stockholders and directors.However,the articles of the association,resolutions of shareholders' and board of directors' meeting,and company seals should also be included into examination obligation,which can be provided directly by the company,and the internal documents are easy to obtain.The degree of review should not be generally distinguished by "form" or "substance".It is necessary to establish the examination obligation of counterpart under the principle of distinction.