A Study On The Validity Of The Guarantee Contract Between The Company And Its Shareholder For Internal Share Transfer

Related-party guarantee is an old-fashioned legal issue in the field of commercial law.With the continuous development of the market economy,related-party guarantee has become a common business transaction model.Its existence has certain reasonability and necessity for promoting transactions and protecting the realization of claims.The Company Law was adopted at the fifth meeting of the Standing Committee of the Eighth National People's Congress on December 29,1993,and has been amended and revised many times in 1999,2004,2005,2013,and 2018.The revision history of China's Company Law also reflects the change of attitude towards the issue of company related-party guarantees,that is,from "prohibited" to "gradual release".This article focuses the "case where the shareholder transfers equity,and the company provides guarantee to the transferee shareholder and signs a guarantee contract or guarantee clause",which is also a kind of related guarantee common in practice.Compared with ordinary related-party guarantees,its specialty lies in that both creditors and debtors are shareholders of the company.Therefore,the validity of its guarantee contract shall take more into account than ordinary related-party guarantee contracts.However,there has been no uniform standard for the determination of the validity of this type of guarantee contract.What this article explores is the dispute over the validity of the guarantee contract in this particular case of related guarantee.The original purpose of the related party guarantee system is to protect the interests of small and medium shareholders and the company from being violated by the major shareholders or actual controllers based on information advantages and control position advantages.However,related-party transactions and related-party guarantees have also promoted the company's development to a certain extent.The healthy development of the market and the interests of the company or shareholders shall be well balanced.Therefore,it is necessary to analyze the validity of this special related-party guarantee contract from the perspective of theory and current judicial practice.This article analyzes whether the related guarantee clause is necessarily invalid from the perspective of jurisprudence.At the same time,it explores room from the perspective of different influencing factors and risk control.First,this article briefly introduces its benefits and disadvantages to the company from a business practice perspective.Secondly,by reading the relevant reference materials,this article summarizes the three perspectives of the current theoretical arguments on the determination of the validity of the guarantee contract,and analyzes the main issues involved from the perspective of judicial practice through case analysis.In terms of research methods,this article also attempts to find typical cases and important conference speeches in practice while jurisprudence analysis,in order to confirm the application of theoretical ideas in practice and avoid divorce from reality.The purpose of this article is to analyze the main issues that affect the validity of the guarantee contract by analyzing the company's personality independence and the interests of creditors and small and medium shareholders from a theoretical and practical perspective,and finally draw conclusions.Finally,this article introduces other factors that may be of reference value about the validity of this type of guarantee agreement,including guarantee conditions and the type of company providing the guarantee.