Research On External Guarantee Of Company

With the rapid development of China’s economy and the increasing scale of economy,many companies will provide guarantees to others during their development.A company’s external guarantee means that the company provides guarantee for its own debt or other people’s debt with its own credit or property.Article 60,paragraph3,of the Company Law of 1993 stipulates that "directors and managers shall not provide guarantees to shareholders or other individuals of the company with the assets of the company." It does not stipulate whether the company as a subject can provide guarantees to others.There is a heated discussion on whether the company has the ability to guarantee the company to the outside world,and there is no such discussion.With the rapid development of the economy,the problem of guarantee has been widespread.It is urgent for the law to make a clear provision on this issue.Article 16 of the new Company Law of 2005 clearly stipulates that a company has the ability to guarantee outside.A company may provide guarantees to the outside world in accordance with the provisions of the law and the articles of association,and the non-related guarantees to the outside world shall be guaranteed by the shareholders(general assembly)meeting and the board of directors.The relevant guarantees to the outside world must be decided by the shareholders(general assembly)meeting and the shareholders and the actual controllers who are guaranteed have no ability to vote.That is to say,the company should provide related guarantees to the outside world byapplying the voting rights exclusion system,the articles of association can also limit the amount or total of the guarantees.Compared with the Company Law of 1993,the new Company Law of 2005 has made remarkable progress.However,the new Company Law has a great shortcoming in guaranteeing matters,that is,it does not stipulate the validity of guaranteeing to others in violation of regulations.In theoretical circles and judicial practice,there is a great controversy over the effectiveness of corporate breach of guarantee.Chapter one mainly gives a brief explanation of the present legislation of guaranty in our country.There is no special clause in the Company Law of 1993 which stipulates the matters of guaranty to the outside of the company.Article 16 of the newly revised Company Law of 2005 has changed the problem of the absence of the law since 1993.Article 16 clearly stipulates that the company in our country has guaranty to the outside.In the second and third paragraphs,it specifies the specific provisions of the company’s external guarantee.It also mainly discusses the normative nature of Article 16 of the Company Law.The academic circles mainly explore whether it is a mandatory legal norm of management or a mandatory legal norm of validity from the normative nature of Article 16 of the Company Law.Through the analysis of the normative nature of Article 16,to determine whether the effectiveness of external guarantees of violations of the company is effective or not,this analysis path has little effect on solving practical problems.This paper puts forward a new way of analysis,which combines Article 16 of the Company Law with Article 61 of the General Provisions of the Civil Law and Article 50 of the Contract Law.The second chapter mainly discusses the resolution organ of the company’s external guarantee.The author discusses from various aspects which organ should be used as the resolution organ,pointing out that the resolution of the company’s external guarantee can fully reflect the will of the company as long as the resolution is made by the shareholders’ meeting or the board of directors,so the two resolutions are valid.Yes.When the shareholders(general assembly)and the board of directors simultaneously make a resolution on external guarantees,if the two resolutions do not violate the law and the provisions of the articles of association in form or content,then the two resolutions are true and effective,but their effectiveness ranks are different.In addition he validity of providing external guarantees without resolution,which is divided into two parts.The first part is the validity of providing related guarantees without resolution.Content,if the relative person is bona fide,it constitutes an apparent representative,which is effective.The second part is about the effectiveness of providing non related guarantees without a resolution.The guarantor shall also examine the form of the articles of association of the company,if the relative is in good faith,it constitutes a representative by estoppel;if the relative is malicious,the validity of the contract remains to be determined,and the company may make a declaration of intention within one month whether to ratify it or not.Chapter third mainly discusses the effect of the company’s excess external guarantee,pointing out that when the articles of association limit the amount of guarantee,the legal representative of the company on behalf of the company’s external guarantee will constitute an act of ultra vires,if the guarantor knows that the amount of guarantee exceeds the limit,the excess part is not effective;when the articles of association on behalf of the company’s external guarantee;When the total amount of guaranty is limited,it generally has no effect on the effectiveness of the guaranty,and will have some effect in special circumstances.