Research On The Examination Obligation Of The Relative Party In Company Guarantee

Under the guidance of commodity economic development and economic system reform goals,commercial transaction activities are becoming more prosperous.The active market economy has made corporate guarantees the norm.As an important social and economic entity,guarantee chaos frequently affects the development of the company.It brings great hidden danger to the macro-economic development of the whole society.Taking Article 16 of the company law of 2005 as the dividing point,my country’s legislation has gone through a process from completely negating the company’s guarantee capability to affirming the company’s guarantee and putting forward resolution procedures for the guarantee.While the reform of legislation conforms to the laws of objective economic development,At the same time,there is a lack of relevant legal consequences,which leads to disputes about the company’s external guarantee behavior and the effectiveness of the contract in the theoretical and practical circles.The focus of the dispute lies in the duty of review of the company’s guarantee counterpart.However,my country’s legislation does not specify the review obligation of the counterparty,and there is no unified judicial judgment,and there are different views in the theoretical circle.Based on this,the counterparty’s review obligation urgently needs to be unified and clarified.To solve this problem effectively is not only conducive to balancing the interests of guarantors,but also very important for maintaining the unity of legislation and the credibility of judicial decisions.Starting from Article 16 of company law,through a summary of the controversial viewpoints in the theoretical circles in recent years,an analysis of the existing legislation,judicial interpretations and related regulations on the counterparty’s review obligation and the existing shortcomings.Through the empirical analysis of judicial precedents,the interpretation of different paths of judicial judgments has found the following problems:Firstly,the standard and specific content of the duty of review of counterparties have never reached a unified reference standard,and disputes have continued from all walks of life;secondly,due to the lack of legislation on the counterparty’s review obligations,The Company Law,the Civil Code,the relevant judicial interpretations,and the opinions of the Supreme Judicial Authority and other relevant legal basis are complex and fragmented.The application relationship is confused and the specific application is difficult to grasp,resulting in different judicial judgment paths and serious judgment results;finally,due to the lack of legal consequences,the effect attribution of the legal representative’s ultra vires guarantee and the liability of the guarantee parties are not clear.In order to solve various problems caused by the unclear duty of the counterparty in the current legislation and justice,based on the consideration of the purpose of the legislation,the following suggestions are made on the review obligation of the counterparty: Firstly,clarifying the criteria and content of the reviewthe counterparty shall be given a formal review obligation,it is the best balance for the interests of all parties to take the legality of the articles of association,the integrity of the guarantee resolution and the consistency of shareholders’ signatures as the specific contents of the review;Secondly,making the rules of judicial adjudication perspicuous.the rule path of uniform judicial judgment application law is based on the guidance of Article 16 of company law and article 504 of civil code contract title,and the relative person shall bear the burden of proof for doing good examination duty;thirdly,defining the legal consequences.in order to make up for the lack of legal consequences in Article 16,it is necessary to clarify the ownership of the effect of the legal representative’s ultra vires representative on the guarantee contract and the responsibility of each party.Based on the structure of the content related to the review obligation of the counterparty in the company guarantee,a set of relatively systematic and detailed rules on the review obligations of relatives has been formed,which provides a standardized path for judicial adjudication and also provides a reference for legislative improvement.