On The Review Obligation Of The Counterpart In The Company’s External Guarantee

With the introduction of the Ninth Civil Code,the Civil Code and the Interpretation of the Civil Code on Security,the duty of review of the opposite party was affirmed and the standard of reasonable review was further introduced.However,theory and practice do not agree on the definition of "reasonable" in the standard of reasonable review.This article will conduct an empirical study based on judicial data,analyse the content of the duty of review on the part of the relator and clarify the thinking in judicial practice.This article elaborates on the necessity of the duty of review in relation to external guarantees of companies from the perspective of the special structure of legal persons’ representations,the duty of care under commercial appearanceism and the balanced protection of interests.When the appearance of rights is inconsistent with the real internal rights and obligations,it is necessary for the counterparty to make a prudent judgment with the standard of a rational person to justify the reliance,and to balance the interests of creditors,the interests of the company and shareholders,and the stability of the market transaction.The relationship.Based on the factors influencing the standard of review,the respective advantages and disadvantages of the standard of formal review and the standard of substantive review are analysed,the position of the standard of reasonable review is identified,and the "reasonableness" in the standard of reasonable review is concretized,i.e.the core of the standard of reasonable review is still the formal review,which is reflected in two aspects: firstly,the absolute review of the articles of association,and secondly,the review of the appropriateness of the resolution.The second is the review of the appropriateness of the resolution.The justification of the relator’s review of the statute comes from the legal provisions,and the review of the statute provides the basis for adjudicating the validity of the resolution.The relator’s review of the resolution is primarily a review of the constitutionality of the resolution,proving that it has fulfilled its duty of reasonable review and constitutes good faith,thereby implicating the resolution in the validity of the contract.If the counterparty has not fulfilled the duty of reasonable examination,it is slightly inappropriate to directly determine that the guarantee contract is invalid and should be applied analogously to the powerless agency to fill the gap in legal consequences.If the company does not retrospectively recognize the guarantee contract,the guarantee contract will not be effective for the company and the counterparty and the legal representative will be held responsible according to the degree of fault respectively.