On The Effectiveness Of The Company's External Guarantee

Based on the emergence of the phenomenon of the company's external guarantee in our country,the article 16 of the general provisions regulates the issue of the company's external guarantee in the revision of the company law in 2005 and continues to the present.However,although the company's external guarantee procedure is stipulated in Article 16 of the company law,the legal effect of the external guarantee is not stipulated,forming a legal loophole.Since then,the effectiveness of the company's external guarantee has been widely debated in the theoretical and practical circles.In the theoretical circle,this issue has been discussed for more than ten years,but there are still uncertainties and tangles in the interpretation;in the judicial practice circle,the court frequently makes different judgments for the effectiveness disputes of the company's guarantee act,which brings the confusion of the judgment and damages the authority of the judicial judgment.After December 2017,in order to solve the disputes in judicial practice,the Supreme People's court tried to solve the current contradictions in this issue by issuing regulations and issuing speeches of the special committee of the judicial committee,so as to guide the direction of trial work at all levels.However,because the above-mentioned documents are not judicial interpretations and there are still differences in the basis selection and reason expression of the above-mentioned documents,there are still different judgment results in the cases of the Supreme People's court since the end of 2017,(which shows that the efforts of the Supreme People's Court have yet to achieve results.)Because the provisions of Article 16 of the company law can not answer the validity of the breach of this article,the current theoretical and practical circles try to solve this problem with different interpretation methods,and draw different conclusions through different interpretation paths.This paper holds that the premise for the interpretation of legal provisions is to find the legislative evolution and normative significance of the provisions.Therefore,in order to get the root of the problem,this paper starts with the legislative history of Article 16 of the company law,combined with the legislative background and reasons,to explore its normative significance of "regulating the internal decision-making process of guarantee matters rather than limiting the company's guarantee ability",so as to lay a foundation for the subsequent selection of the basis for determining the effectiveness of the company's external guarantee behavior.On the issue of the validity of the external guarantee in violation of Article 16 of the company law,after extensive discussion in the theoretical circle,a variety of viewpoints have been formed,such as the validity of the guarantee act,the invalidity,the invalidity,the undetermined validity of the guarantee contract,and the determination of the validity of the contract based on the judicial judgment of the company's resolution or the relevant articles linked to the contract law.This paper holds that the best way to judge the effectiveness of the company's external guarantee is to take Article 16 of the company law as the premise,link to the agent and representative system,and take Article 48 and Article 50 of the contract law as the auxiliary basis to judge the effectiveness of the contract.Therefore,whether the counterpart "knows or should know" that the legal representative or the person in charge exceeds the authority has become the key to judge the effectiveness of the external guarantee.Whether the counterpart has the review obligation and the extent of the review obligation has a significant impact on the determination of the effectiveness of the guarantee.In the theoretical and practical circles,there are views that the opposite party has no review obligation,the opposite party has formal review obligation and distinguishes the listed company from the closed company,related guarantee and non related guarantee to determine the review obligation of the opposite party.By using the ideas and provisions of the German civil code and the German Commercial Code of the same civil law system for reference,this paper holds that the counterpart should bear the obligation of formal examination.Through reference to the provisions of the enterprise registration procedure,the criteria for seeking form examination are: the materials conform to the legal form,and the recorded items conform to the legal requirements.Through sorting out the provisions of the company law,we can get the specific content of the parties' form review.