Research On The Effectiveness Of The Company’s Unauthorized Guarantee

External guarantee is the company’s right and one of the credit enhancement measures in commercial activities.On the one hand,it guarantees the effective circulation of funds and facilitates the conduct of commercial activities;As a result,the interests of the relevant persons are damaged,and the illegal guarantee behavior is even more harmful.The unauthorized guarantee behavior is one of them.Therefore,we have always adopted a cautious attitude in legislation.Article 16 of the "Company Law" is an important provision that regulates the company’s guarantee.Although the company has regulated the exercise of the company’s right to provide guarantees to the outside world,it has not dealt with the violation of this provision,resulting in the company’s unauthorized guarantees.To a certain extent,the legal deterrent has been lost.That is to say,in the case of a company’s unauthorized guarantee,the law does not explicitly stipulate the effectiveness of the unauthorized guarantee contract,whether it is valid,invalid,or effective,is left to the discretion of the judge.The phenomenon of different judgments in the same case frequently occurs in practice..In addition to affecting the fairness of interests among companies,shareholders,and relatives,it also affected the authority and credibility of the judiciary.Therefore,this article discusses the effectiveness of the company’s unauthorized guarantee,starting from the case in judicial practice,combing the legislation related to the company’s guarantee,summarizing the judicial status,and elaborating and evaluating the three ways of determining the effectiveness of the unauthorized guarantee in practice According to the problems and reference in the common path,perfect the system of the company’s unauthorized guarantee effect.In addition to the introduction and conclusion,this article discusses from four parts.In the introduction,it introduces the background,significance and research status of the topic,and expounds on the problem of exceeding the power of corporate guarantee in judicial practice in China.Part 1 elaborates the concept of company’s unauthorized guarantee,mainly introduces the concept of company’s unauthorized guarantee and analyzes its essence.Part 2 expounds the legislative evolution and judicial status of China’s over-the-counter guarantees,analyzes the changes in the law of the 1993 "Company Law" so far;it sorts out the jurisprudence in judicial practice and summarizes the company in judicial practice.There are mainly disputes over the disagreement of unauthorized guarantees.Part 3 reviews and analyzes the path of the determination of the effectiveness of the company’s unauthorized guarantee,that is to say,there are three main types of disputes about the path of the determination of the effectiveness of the company’s over-the-counter guarantee contract.First,the legally regulated attribute path,the "Company Law" The nature of Article 16 is used as the basis for determining the effectiveness of the guarantee contract;second,the internal management path considers that the guarantee resolution made within the company is completely different from the guarantee contract concluded externally,even if it exceeds the authority,it will not affect the effectiveness of the contract;third,the legal authority Restrict the path,think that Article 16 of the "Company Law" restricts the right of the company’s legal representative to represent the company externally,makes a reasonable interpretation of Article 16,and incorporates the duty of care of the relative person into the basis for judging the effectiveness of the guarantee contract.The legitimate rights and interests of the company and the freedom to conclude foreign contracts play a balancing role,and this article also agrees with this basis.Part 4 improves the system for determining the effectiveness of the company’s unauthorized guarantee,proposes to unify the normative attributes of Article 16 of the "Company Law",combines the requirements for the entry into force of the contract in the "Contract Law",examines the obligations of the counterparty,and separately resolves the company’s unauthorized guarantee resolution The validity of the contract is determined.The conclusion summarizes the full text.