| The "Company Law" of 2005 allows companies to provide guarantees for the debts of others,thereby facilitating the company’s financial communication.At the same time,in order to prevent damage to the company caused by arbitrary guarantees by the legal representative and other internal management personnel of the company,the "Company Law" stipulates strict procedures for companies to make guarantee decisions.Since the implementation of the current "Company Law",it is not uncommon for violations of the company’s guarantee procedures to be guarantees.How effective are such guarantee contracts,Whether the creditor has the examination obligation in the company guarantee.If the creditor fails to examine,what is the validity of the guarantee contract concluded under such circumstances,etc.Because there are no specific provisions in the "Company Law",which leads to different judgments in judicial practice,and which is extremely controversial.Although with the deepening of research,more and more scholars and judicial practitioners believe that creditors in company guarantees should bear the examination obligation.For example,the Supreme People’s Court hold this view in the “Minutes of the Civil and Commercial Trial Work Conference of the National Courts” released in November2019,but other issues related to the creditor’s examination obligations have not yet formed a unified opinion in theory or judicial practice.And there is little systematic and complete research on the creditor examination obligation.This article studies on the theme of creditor examination obligations in company guarantees.First of all,it analyzes the judgment of two typical cases related to company guarantee,in order to point out the main focus problems around the examination obligation of creditors in the company guarantee disputes;Then it introduces the provisions of extraterritorial legislation about the creditor’s examination obligation,and demonstrates the legal logic and necessity of the existence of the creditor’s examination obligation,and concludes that the creditor should bear the corresponding examination obligation in the company’s guarantee to ensure that the guarantee made by the legal representative or other personnel of the company in the name of the company conforms to the true meaning of the company;Next,it analyzes the scope standard of the creditor’s examination obligation.The creditors should not only examine the matters related to guarantee in the articles of association,but also review the company’s guarantee resolution.The standard ofcreditors’ obligation of examination should not be defined as formal or substantive obligation of examination.Instead,the judge should be allowed to combine the specific case to judge whether the creditor has fulfilled the duty of care that a reasonable and well-meaning person can fulfill under the same circumstance,that is,the reasonable duty of examination;At last,the paper expounds the problems of the confirmation of the validity and the responsibility of the company’s guarantee contract when the creditor has not fulfilled the obligation of examination.This paper holds that the validity of the guarantee contract depends on the company’s ratification.In case of invalidity of guarantee contract,the validity of guarantee contract should refer to Article 171,paragraph 4 of the General Principles of Civil Law.That is to say,the legal representative beyond their authority and the creditor should bear corresponding responsibilities according to their own faults,and the company does not need to undertake any civil liability. |
