| Among the common problems in the company’s external guarantee disputes,the main problem has now evolved from the initial dispute over the nature of article16 of the company law to the direction of whether the creditor has the obligation to examine.In different practical cases,the law still does not specify whether the creditor should undertake the duty of review,or what kind of duty of review,on the other hand,,on the other hand,there is not much discussion on the attribution level of the legal consequences of such security disputes.In judicial practice,different judges also confirm the creditor ’ s judgment through different understanding and value judgment of the law Business problems,which leads to the company ’ s foreign guarantee dispute cases of the outcome of confusion,on the existing law can not play the legal effect of dispute resolution.This article considers the creditor’s rights in the process of the company’s legal representative’s private guarantee The person should have the obligation of formal examination;whether the obligation of formal examination will affect the determination of a bona fide third party in a specific case;the act of the legal representative providing security privately in the name of the company is not of course valid or invalid;and the legal consequences of the act of guarantee are not of course borne by the sponsoring company.This paper focuses on the scope and standard of the creditor’s obligation to examine in the process of signing the security contract,and the boundary of the expansionary form examination.By selecting three typical cases and analyzing the legal problems existing in the three cases,the disputefocus in the three cases is refined by sorting out the dispute focus in the three cases The three legal problems reflected are whether the guarantee contract signed by the legal representative of the company is valid or not;how to determine the scope and standard of the creditor’s duty to examine;whether the guarantee company carries on the legal analysis on the legal consequences of the legal representative’s guarantee act of course,and finally puts forward its own views and suggestions in combination with the cases and problems,in order to provide some for solving similar problems in judicial practice.The thesis consists of three parts:The first part,case brief and dispute focus.According to Tian a private loan case,China Salt International Trading Company loan dispute case and Daqi Yangchang coal mine small loan dispute case.The course of the three cases,the legal issues reflected in the focus of the dispute and the outcome of the proceedings.In the case where the articles of association do not provide for the security matters,the legal representative’s non-malicious collusive security act shall be regarded as the true intention expression of the company,and its legal consequences shall be the joint and several security liability of the company of course.If the creditor fails to prove that the creditor is a bona fide counterpart,then the company does not assume joint and several liability for the legal representative’s act of security;in the case of the small loan dispute in Daqi Yangchang Coal Mine,the creditor does not have any obligation to examine when signing the security contract,as long as the secured contract is valid and the secured company should be jointly and severally liable because it can be considered a bona fide counterpart on the basis of confirmation of the legal representative ’ s identity.Based on the focus of the dispute extracted from the three cases.The second part,legal principle analysis.Starting with the legal problems reflected in the three cases,combining the theoretical theory and the legal issues themselves,the author analyzes and discusses the problems,and then goes back to the case itself to judge and reason the problems.The third part,onclusions and implications.According to the three legal problemsreflected by the dispute focus of the three cases,the author gives his own point of view,analyzes the rationality of creditor ’ s obligation,and then gives his own enlightenment and suggestion to solve such cases in judicial practice. |
