The Obligation To Review The Counterparty In The Company's Ultra Vires Guarantee

Corporate guarantee is the lubricant of corporate transactions,and the perfection of the review obligation system of corporate foreign guarantee counterparts not only involves the security of commercial transactions and risk control,but also directly affects the financing efficiency and financial security of the trading market.The system of the obligation of counterparty examination has a certain legal basis.Article 16 of the Company Law,as the "induced clause",causes the presumptive notification function of the law to "induce" the articles of association of the company.The internal effect of the articles of association and the resolution of the company "overflow" and gives rise to the external effect,thus generating the obligation of counterparty examination.The theory of risk prevention requires to balance the interests of multiple subjects in the guarantee relationship,and the imposition of examination obligation on the counterparty will not increase the counterparty's transaction cost too much while reducing the risk prevention cost in the transaction relationship.The principle of strict liability of the merchant subject also means that the relative party needs to act actively to reduce the transaction risk and avoid the difficulty of proof in litigation.For a long time,the law on corporate guarantee is very simple,easy to lead to ambiguity,it is difficult to play the role of regulating the chaos of corporate guarantee.In order to improve the company's external guarantee system,the Supreme People's Court only required the counterpart to conduct formal examination in the "Nine People's Notes",and limited the scope to "necessary duty of care",and required "reasonable examination" in the "Guarantee Interpretation".However,the examination mode is still not clear,and the examination scope is not certain enough.Therefore,the author advocates to confirm and distinguish the identities of companies on the basis of careful examination,mainly distinguish public companies from non-closed companies,and impose a high duty of attention and strict examination on financial institutions such as banks.The contents of the examination of the counterpart should include the examination of the authority of the legal representative or agent,the examination of the articles of association,the identification of the resolution authority and the examination of the resolution.Among them,the examination of the resolution should also include the procedural elements of the resolution,the resolution authority and the limit of the company's guarantee to the outside.