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Study on Legal Problems of Company External Guarantees

Author: GuoZhiChao
Tutor: ChengLiaoYuan
School: Chongqing University
Course: Legal
Keywords: External guarantees of the Company Articles of Association The effectiveness of the guarantee contract finds Accountability
CLC: D922.291.91
Type: Master's thesis
Year: 2011
Downloads: 80
Quote: 1
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Abstract


With the rapid development of commercial transactions, the company has the right to dispose of the property of the company as a business subject, allowing the company's external security can safeguard the security of the transaction between the business subject and the promotion of financial intermediation and the circulation of commodities. Of the provisions of the Companies Act the company's external security system, to require the company to have the ability of external guarantees, also stipulates that the company's external security must be some guarantee program that is required by the articles of association of the company, shareholders or board of directors resolution external guarantees. For violation of the company's external security program, the effectiveness of the guarantee contract should be how to identify and guarantee contract is invalid, should be the responsibility of how to bear, but did not make provisions, causing a lot of litigation, is not conducive to ensure the security and the promotion of financial intermediation. Whether external guarantees depends on the provisions of the Articles of Association of the Company. Within the limits prescribed in the Articles of Association, the shareholders or the board of directors in accordance with the procedures of external guarantees to allow the company's external security, guarantee contract is valid. But in the case beyond the scope of the provisions of the Constitution even in violation of the company's external security program, the shareholders' meeting or the board of directors to allow a company's external security to guarantee the effectiveness of the contract to be further identified. If you enter the stage of the proceedings, should be based on the specific situation in the judicial practice. Articles of Association as the carrier of the common will of the shareholders of the Company to be binding on the company, its shareholders, directors and senior management personnel. Articles of Association the company's internal agreement, does not have the effectiveness of the World, not against bona fide third persons dealing with a company. Not appropriate due to the Articles of Association has openness can be found on the finds that the third man bears the obligation to review the Articles of Association of the Company, and then infer the third person known to the provisions of the Articles of Association of the Company. Not occur to fulfill the effectiveness of the guarantee contract is confirmed as invalid. Although the company no longer assume security responsibility, but should bear the corresponding legal responsibility. Such as entering a stage of the proceedings, the judicial officer should be based on the principle of fault liability, in accordance with the degree of fault of the respective parties, to determine the legal responsibility of the company, the debtor and creditors, appropriate compensate for the economic losses of the creditors, maintain the fairness and justice of the market economy. Through the use of case analysis, theory with practice, comparative analysis and other research methods, the key analysis Articles of Association of the Company to guarantee the validity of the contract and argumentation creditors does not have the obligation to review the Articles of Association of the Company, and analyzed the guarantee contract is invalid, the acceptance of liability issues. On this basis, the combination of the existing provisions of the Companies Act, the legislative proposals, I hope to be useful to improve the company's external security system.

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