An Empirical Analysis Of The Judgment Path Of The Company’s External Guarantee Without Resolution

Corporate guarantee is a common credit enhancement measure to promote economic accommodation in market economy,but it often leads to disputes.Article 16 of the company law affirms the company’s ability of external guarantee,but at the same time regulates the formation of the expression of company’s will,aiming to protect the company’s assets and the interests of its minority shareholders and other creditors.However,due to the lack of legal effect elements in Article 16 of the company law,the judgment path of the company’s violation of Article 16 of the company law in the case of external guarantee presents obvious differences in judicial practice.Through the empirical analysis of the judgments of the cases in the past two years,this article presents the current status of the judgments of such cases from three aspects: validity determination,responsibility distribution,and the key factor in the validity determination-creditor’s examination obligation.The author concludes that the outstanding performance of the differentiation of the current refereeing path lies in the difference in choosing the "Normative Attribute Analysis Path" or the "Over-authority Guarantee Path" when determining the effectiveness,and the the judgment basis under the "Over-authority Guarantee Path" is not clear;There are differences in whether there is a review obligation and specific content of the review obligation;and when the responsibility is determined,when the security right is not in good faith,the distribution of responsibilities is unclear.Then,this paper analyzes the reasons for the differential performance of the above-mentioned judgment path.The main reason for the dispute of effectiveness determination path is that the company guarantee behavior straddles the organization law and the behavior law.The conflict between the values of legal protection in the two fields leads to the different paths chosen by the judges in practice.The application law of "Over-authority Guarantee Path" is unclear,mainly because there are problems in the connection between the general principles of civil law and the contract law.The main reason for the difference in the review obligation of creditors is that the external effect of Article 16 of the company law and the articles of association needs to be clarified.In the case of the non good faith of the secured party,the determination of validity and the distribution of liability are unclear,mainly because of the lack of legal consequences of the failure to establish the apparent representative.Finally,in order to solve these problems,this paper selects and improves the judgment path of this kind of cases.First of all,in terms of the path of effectiveness determination,considering that the value protected by the organization law and the act law is not biased to one party,it is reasonable to choose the "Over-Authority Guarantee Path" at present.Under the "Over-authority Guarantee Path",from the perspective that Article 16 of the company law is a legal restriction on the authority of representatives or agents,Article 50 of the contract law and article 172 of the general principles of civil law should be selected as the judgment basis.In the dispute of the obligation of examination,we should recognize the obligation of examination as the criterion of good faith under the recognition of the external effect of Article 16 of the company law and some articles of the articles of association.In terms of the content dispute of the review obligation,through the evaluation of the ability to obtain the articles of association of the reviewer and the difficulty to obtain the articles of association of the reviewed person,it is considered whether to require the review resolution organization and the amount of guarantee to conform to the articles of association after the review company issues an internal resolution and agrees to the external guarantee.Finally,after judging according to Article 50 of the contract law but not constituting the representative,based on the similarity between the representative and the agent,we should analogize the application rules of no agency to judge the validity and liability,and not assume the liability when the contract is not effective,and consider the liability of compensation according to the interpretation of the guarantee law when the contract is invalid.