Research On The Effectiveness Of The Company's Ultra Vires Guarantee To Shareholders

The purpose of the company law is to make the organization and behavior of the company more normative,so that the interests of the company,shareholders and creditors are better protected,so as to play a good role in the maintenance of the social and economic order and the development of the socialist market economy.Over the years,the company law has also been increasingly improved,which has made outstanding contributions to economic development.However,due to the lagging nature of the law,it is inevitable that there will be defects on the way to perfection.For example,article 16 of the current company law of our country merely stipulates the procedural issue of the company providing security for shareholders,and does not make clear the legal consequences of the violation of the guarantee procedure.Therefore,there is still a dispute over the effectiveness of the guarantee provided by the company to the shareholders or actual controllers of the company without the resolution of the shareholders 'meeting or the shareholders' general meeting,and whether the creditor should bear the responsibility for review is not clearly stipulated.Therefore,the academic community has not only debated the above issues,but also increasingly examples of different cases in judicial decisions.This article only studies the effectiveness of the guarantee provided by the limited liability company to shareholders in the absence of the provisions of the articles of association,so as to give some impetus to the legislation,justice and corporate governance of our country.In addition to the introduction,this paper is divided into three parts to analyze the effectiveness of the company's guarantee for shareholders: Part I: Introduction and summary of focus issues.The article adopts the case analysis method,selects three cases as the entry point of the problem analysis,first of all,briefly introduces the three cases and court decisions.After the study,three focus questions were extracted: whether the company's legal representative's act of privately providing security for the company's shareholders was valid,whether paragraph 2 of Article 16 of the company law was mandatory or mandatory,and whether the creditor had a review obligation.Part two: Legal analysis.The first is to analyze the validity of the company's legal representative's act of privately providing security to the shareholders of the company from three perspectives: the Company Law,the General Civil Law,and the Contract Law.Specifically from the authority of the legal representative,the validity of the contract,agency acts,guarantee acts and so on;Secondly,the article 16,paragraph 2,of the company law is mandatory or mandatory from the perspective of theory and practice.Finally,it analyzes whether the creditor is good faith and faultless from the point of view of existing law and practice.The third part: the research conclusion and the suggestion.Through the analysis of the first two parts,the author summarizes the effectiveness of the company's acts of providing guarantees for shareholders,and puts forward suggestions on legislation,justice,and corporate governance in order to promote the orderly operation of the market economy.