Study On The Effectiveness Of The Company’s Non-associated Guarantee

The security system was developed with the emergence of the market economy,not only to protect the realization of claims but also to gradually become a financing instrument in corporate transactions.However,since the implementation of the "Company Law " in 1993,the company ’s external guarantee behavior has been strictly limited.The reason for this is that,with the rapid growth of business,it seems that the restrictive provisions of the guarantee system are no longer adequate for the spread of the present-day guarantee practices that.It was not until the comprehensive revision of the Company Law in 2005,that the development of the corporate guarantee system was elevated to a new level.However,due to the company ’s non-related guarantee clauses are too simple and abstract,and do not stipulate the validity of the violation of this article,there is a great controversy in the application in practice.At present,China’s provisions on the guarantee system continue to be introduced,the relevant legal norms are also in judicial practice for the solution of the company guarantee problem to provide new ideas,but because the legal interests of the parties defend different subjects,so in practice the balance of the interests of all parties will still be a problem.Therefore,based on a large number of literature and monographs,this paper composes and analyzes the domestic and foreign literature on this issue,and summarizes the judicial views in practice and the legislative purpose of Article 16(1)through empirical and normative analysis,and analyzes the necessity and feasibility of this paper,and clarifies the academic controversy on the effectiveness of unrelated guarantees through a review of the literature,and provides a theoretical basis for the following academic discussion.This paper focuses on the effectiveness of non-associated guarantees of companies.After a theoretical overview of the issue,defining the concept of non-association,this paper addresses the issue by first analyzing the current status of non-associated guarantees,focusing on the determination of this issue in practice,and after reading the relevant cases,it can be seen that the Supreme Court has not formed a unified adjudication path for this issue.On this basis,I interpret the provisions of the non-associated guarantee and its nature to make it clear that the law recognizes the company’s ability to provide external guarantees.At the same time,from the perspective of autonomy for the interpretation of the articles of association,through the analysis of the content of the articles of association,it can be known that the provisions of the articles of association will not necessarily have an impact on the effectiveness of the guarantee contract,but if the introduction of third party review obligations will have an impact on the effectiveness of the results.Based on the above view,the author divides the unrelated guarantee acts into internal resolution acts and guarantee acts,and tries to seek a new interpretation of the unrelated guarantee provisions through the relationship between the articles of association and the guarantee contract.Based on the relationship between the internal resolution and the external guarantee,the obligation of the third party to review and belong to the indispensable part of it,if the company wants to implement unrelated guarantee for others,at this time,its guarantee resolution belongs to the internal resolution based on the articles,and the external guarantee shall be based on the company law,as the company law,generally has the effect on the world,but the articles and the resolution belong to the internal scope of the formation of the company.Generally speaking,whether the third party does not have the effect on the world,but the guarantee resolution is a mandatory document provided by the company law,so the third party is given the obligation to review the resolution.Finally,based on theoretical analysis,the research problem is typified,and it is clear that when a company provides a guarantee to the outside world in violation of the provisions of Article 16,the effectiveness of which is not binding on third parties according to the articles of association,the focus should be on seeking the responsibility of the internal management of the company,and it is not in line with the principle of equity and justice to require creditors to bear the adverse consequences of the effectiveness of the guarantee directly.