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Affirmation of Validity of External Guarantee of Companies

Author: JuGuoDan
Tutor: XingBaoDong
School: Shenyang Normal
Course: Legal
Keywords: company’s constitution validity of contract external guarantee
CLC: D922.291.91
Type: Master's thesis
Year: 2014
Downloads: 0
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Abstract


With the rapid development of market economy, external security company hasalso become a common phenomenon. Smooth transaction for the company, thecompany guarantees for many companies is necessary. However, the process ofexternal security companies sometimes give the company risks, it is necessary toregulate the behavior of corporate guarantees, controlled companies operating risks.On the issue of external security company, although in2005on "Company Law" made a number of amendments, however, from the relevant case law and existingregulations, our country in terms of external security company still has someshortcomings, During the trial and the trial results are different all over the court, oreven that there is a different case co-contracting. Therefore, it is necessary tocombine the relevant People’s Court case of external guarantees of the company’sresearch.This article from the laws and regulations of the Corporation Law and ContractLaw, combining the theory of the Act, and to explore the effectiveness of thecompany’s external security finds that there are differences of science to solve judicialpractice, controversial issues, to provide a uniform standard of justice apply. Thisarticle lists three cases to lead to widespread controversy guarantee case, then thefocus of controversy and refinement of each chapter to join a number of othercontroversial cases, external security issues. Finally, the cases listed in thecontroversial issue to a conclusion. First, the company in violation of the "CompanyLaw " Article16provides that the resolution authority on whether a direct result ofineffective guarantee contract it? Some people think that the effect of this provision ismandatory, it will result in violation of act is invalid. I believe that the managementof this clause is mandatory, not because of violation of the provisions of this clauseguarantees a direct result of the contract is invalid. Secondly, the legal representative of the company in violation of the provisions of the Articles of Association provideexternal guarantees, validity of the contract at this time how? I believe that at thistime the contract is valid, this time to clear the Articles of Association and internalresolution is the company’s internal behavior; whether a third, a third person has theobligation to review it? I believe that the third party has no obligation to review theCompany’s Articles of Association and resolutions and guarantees. Articles of overtact itself does not constitute evidence that a third person, the third person of theArticles of Association does not assume the obligation to review. From theperspective of reducing transaction costs and balance the interests of the parties, theobligations of a third party should not bear examination.

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CLC: > Political, legal > Legal > Chinese law > Economic Law > Corporate law, company law
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