| The need of large-scale financing in the modern market economy expedites the vigorous development of company guarantee.In practice,the company guarantee dispute has become a big difficult and complicated problem in the judicial practice.Among them,the subjective state of the relative person is an important factor in determining the validity of the contract and delimiting the relevant liability,which is judged by his objective behavior.In the company guarantee relation,this objective behavior mainly manifests in the relative person fulfills the corresponding inspection duty in the contract signing process.Therefore the counterpart inspection duty has the important status in the company guarantee relations.At present,there is no explicit provision on the review obligation of the counterparty party in the Company Law of China,and there are different opinions in judicial judgments on the existence,scope and standards of the review obligation of the counterparty party.Therefore,this paper,through multi-dimensional studies of cases and jurisprudence,provides jurisprudence justification for the review obligation of the counterparty of a company's guarantee,and attempts to build principles and standards that are applicable to the review obligation of the counterparty of a company's guarantee,in order to provide reference for judicial practice.The main part of this article is mainly divided into five chapters:The first chapter mainly analyzes the legal disputes of the review obligation of the counterparty in the company guarantee.First of all,it introduces that there are two main adjudicative approaches to the effectiveness of guarantee.One is the qualitative approach of legal norms.The court first determines what kind of norms Article 16 of the Company Law belongs to,and then judges the effectiveness of violation.Secondly,is the proxy access analysis path.On the basis of the rule of ultra vires representation,the rule of limitation of legal representative representation and the rule of effect of ultra vires guarantee,the court judges the effect of violation of article 16 of the company law by the relative person in good faith.In the path of agent authority analysis,whether the counterparty fulfills the obligation of review is generally regarded as the standard of judging his goodwill.Moreover,this chapter also makes a case study of the review obligation of counterparty,introduces the different attitudes of the courts at all levels on this issue in recent years,as well as several expressions of the review obligation.The second chapter discusses the function and significance of the counterparty's review obligation from three aspects.First of all,it is proved that the method is wrong to find the path of law,and one of the functions of the counterparty's review obligation is to correct the mistake of finding the path of law,and to give a proper evaluation norm.Secondly,it is the academic conclusion that the counterparty's allocation of the review obligation conforms to the nature of the company.In the economic analysis of the company law,both the theory of the contract of the company and the theory of the group production of the company can explain the counterparty's review obligation.Finally,the counterparty review obligation rule can break the absolute limitation of group autonomy,connect the internal and external relations of the company and maintain the balance between group autonomy and transaction safety in providing guarantees beyond the authority.The third chapter is the jurisprudential proof for the review obligation of the counterparty of company guarantee.The legal basis on which the counterparty bears the review obligation mainly comes from three parts: firstly,expand the objects of application of the Company Law,and affirm that specific clauses of the articles of association of the company have external effect,while the counterparty's review obligation for the articles of association corresponds to the external effect of the articles of association;Second,in commercial transactions,the parties should have enough rationality,and the typical expression of rationality is the duty of care in the course of transaction.Finally,when the actor is separated from the recipient of legal effect,the other party should bear the obligation of appearance identification to the representative/agent,which is the so-called obligation of review.The fourth chapter discusses the scope and standard of the counterparty's review obligation,which is the key content of this article.Firstly,it introduces the dispute between formal review and substantive review on this issue,and concludes the difference between them with the help of the standard of proof in civil procedure law.Secondly,using the methodology of dynamic system theory to establish the principle of the obligation of reasonable review,the reasons are as follows: 1.The obligation of formal review has insufficient preventive effect on highly speculative behavior;2.The expression of "reasonable" is more acceptable;3.The standard of review is flexible and convenient for judicial application.Thereafter,preliminarily determining the scope and standards of the review obligation of the counterparty in some specific types of guarantee that are common in practice according to the analysis framework of "Company-Representative-Counterparty",specifically including: 1.to apply different review obligation requirements by distinguishing the counterparty;2.With respect to legal representatives,the review scope for counterparties covers whether there is any flaw in the appearance of relevant guarantee resolutions,and such review standards are relatively lower;with respect to obligation agents,the review scope for counterparties covers the appearance of relevant guarantee resolutions and identity documents of such obligation agents,and such review standards may also include the source of the agents' acts of authorization,and such review standards are relatively higher.2.Different requirements on the obligation of review apply to closed companies and open companies.For a public company,the scope of review by the counterparty is the relevant guarantee resolution,for which the review standards are lower;for a closed company,the scope of review by the counterparty includes the guarantee resolution,authority of the representative,company registration information,and the articles of association,for which the review standards are higher.In addition,in this part,the special elements of the special form of one-person limited liability company,the closed company,are discussed in combination with cases,and the possible impact on the review of the counterparty.3.Different review obligation requirements shall be applied to distinguish related-party guarantee and non-related-party guarantee.For non-related guarantees,the counterparty's review scope is the form and appearance of relevant guarantee resolutions,and the review standards are relatively low;for related guarantees,the counterparty's review scope includes guarantee resolutions,the company's articles of association,the identity information of the guaranteed party,and company registration information,etc.Governance documents and other information in the form of confirming that the resolution passed by the company conforms to the basic exclusion of voting rights,and the review standard is high.4.The identity of the counterparty does not affect the strength of its review obligations.Finally,this chapter also discusses the allocation of burden of proof.Reasonable review obligations are mainly achieved through the burden of proof.Relative parties need to actively prove that they have fulfilled their reasonable review obligations,which can be presumed after the completion of the proof.In good faith,the act of violating the right belongs to the behavior of the company.The fifth chapter is the study of the legal consequences of the counterparty's failure to perform its review obligations in company guarantees.First,a case was used to show the different judicial attitudes on this issue,and it was pointed out that the difference came from the differences in the way of guarantee effectiveness and the differences in the scope of counterparty review obligations.Secondly,it is demonstrated that in the analysis path of agency(representative)authority,it is intended that the agent and legal representative's ultra vires guarantee,the corresponding attribution norms are the rule of no agency and the rule of ultra vires,so the relevant legal consequences should also be in the two Looking for rules.This part mainly focuses on the hermeneutics of Article 171,paragraphs 3 and 4,of the General Principles of Civil Law.Regarding the legal consequences of the legal representative's unauthorized representation,this article demonstrates the rationality of the application of the rule of non-authorization to such analogy and its reasoning conclusions.At the same time,it reiterates the distinguishing standards of review obligations in Chapter 4.Finally,in this article,from the perspective of implementing the path of agency jurisdiction and the protection of the interests of the company's shareholders,after the invalidation of the guarantee due to the counterparty's failure to review the obligation in judicial practice,it also invoked Article 7 of the Interpretation of the Guarantee Law to make the company bear part The practice of liability is negatively evaluated. |
PDF Full Text Request