公司对外担保研究
发布时间：2018-08-26 19:11
【摘要】：随着我国市场经济的纵深发展和法制社会的不断完善,我国对公司对外担保的态度也从限制转变为支持。公司对外担保可以促进公司融资,提升公司信用,增加商机并使公司从中受益。同时,公司对外担保作为一种或有债务,可能会增加公司经营的风险,损害广大股东和债权人的利益。权衡利弊,可以在承认公司具有对外提供担保权力的基础上,防范公司对外担保行为可能带来的风险。本文采用了理论联系实践、历史研究、比较分析的研究方法,对公司对外担保制度进行研究。 本文第一章从理论上对公司担保从不同情况进行了类型的划分,并对几种目前普遍施行的担保模式和立法例进行了分析借鉴,认为允许公司对外担保是世界公司担保的潮流,进而结合我国的担保制度的法律演进,明确了我国现行公司法肯定了公司具有提供担保的权力,加大了公司对外担保的自治空间,扩大了对外担保的范围,并对公司的对外担保行为给予程序上的规范。 本文的第二章通过分析对照我国公司对外担保决策的程序标准以及英美国家的实质判断标准,认为我国公司对外担保程序虽然区分了一般担保和特殊担保,给予不同的担保程序,在一定程度上规制了公司对外担保的违规行为,但是在实践中仍然存在着不少问题,如公司法的规定很容易被规避。我国应当借鉴英美法上的实质判断标准。 本文的第三章对公司担保实践中产生的问题进行了分析,由于公司法关于担保的规定过于原则化,在实务中产生了许多有待探讨和明确的问题,包括:公司章程关于担保的规定能否约束第三人?公司章程禁止对外担保,股东(大)会、董事会签订担保合同的效力如何认定?董事、高级管理人员擅自代替股东(大)会、董事会签订担保合同的效力如何认定?违反公司章程所规定的担保决议机关做出担保决议时担保合同的效力如何认定等等,本文以理论和实践相结合对这些问题进行了分析探讨。
[Abstract]:With the development of the market economy and the perfection of the legal society, the attitude of our country to the external guarantee of the company has changed from the restriction to the support. External guarantee can promote corporate financing, enhance corporate credit, increase business opportunities and benefit the company. At the same time, as a contingent debt, the external guarantee of the company may increase the risk of the operation of the company and damage the interests of the majority of shareholders and creditors. On the basis of recognizing that the company has the power to provide guarantee, we can guard against the risks that the company may bring. This paper studies the external guarantee system of the company by combining theory with practice, historical research and comparative analysis. In the first chapter of this paper, the author classifies the different situations of company guarantee theoretically, and analyzes and draws lessons from several kinds of guarantee modes and legislative examples, and thinks that it is the trend of the world company guarantee to allow the company to guarantee to the outside. Combined with the legal evolution of the guarantee system of our country, it is clear that the current company law of our country has affirmed the power of providing guarantee, enlarged the autonomous space of the company's external guarantee, and expanded the scope of the external guarantee. And to the company's external guarantee behavior to give procedural norms. In the second chapter, by analyzing and comparing the procedural standards of foreign guarantee decision of Chinese companies and the substantive judgment standards of British and American countries, the author thinks that although the foreign guarantee procedure of our country distinguishes between general guarantee and special guarantee, To a certain extent, different guarantee procedures regulate the illegal behavior of the company's external guarantee, but there are still many problems in practice, such as the provisions of the Company Law are easy to be circumvented. Our country should draw lessons from the essential judgment standard of British and American law. The third chapter of this paper analyzes the problems arising in the practice of company guarantee. Because the provisions of the company law on guarantee are too principled, there are many problems to be explored and clarified in practice. Including: can the provisions of the articles of association on guarantee bind the third party? Articles of association prohibit foreign guarantee, shareholders (big) meeting, board of directors signed the effectiveness of the guarantee contract how to determine? Board of directors, senior management without authorization to replace shareholders (large) meeting, the board of directors signed the effectiveness of the guarantee contract how to determine? How to determine the validity of the guarantee contract when the agency makes the guarantee resolution in violation of the articles of association, this paper analyzes these problems with the combination of theory and practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
本文编号：2205885
[Abstract]:With the development of the market economy and the perfection of the legal society, the attitude of our country to the external guarantee of the company has changed from the restriction to the support. External guarantee can promote corporate financing, enhance corporate credit, increase business opportunities and benefit the company. At the same time, as a contingent debt, the external guarantee of the company may increase the risk of the operation of the company and damage the interests of the majority of shareholders and creditors. On the basis of recognizing that the company has the power to provide guarantee, we can guard against the risks that the company may bring. This paper studies the external guarantee system of the company by combining theory with practice, historical research and comparative analysis. In the first chapter of this paper, the author classifies the different situations of company guarantee theoretically, and analyzes and draws lessons from several kinds of guarantee modes and legislative examples, and thinks that it is the trend of the world company guarantee to allow the company to guarantee to the outside. Combined with the legal evolution of the guarantee system of our country, it is clear that the current company law of our country has affirmed the power of providing guarantee, enlarged the autonomous space of the company's external guarantee, and expanded the scope of the external guarantee. And to the company's external guarantee behavior to give procedural norms. In the second chapter, by analyzing and comparing the procedural standards of foreign guarantee decision of Chinese companies and the substantive judgment standards of British and American countries, the author thinks that although the foreign guarantee procedure of our country distinguishes between general guarantee and special guarantee, To a certain extent, different guarantee procedures regulate the illegal behavior of the company's external guarantee, but there are still many problems in practice, such as the provisions of the Company Law are easy to be circumvented. Our country should draw lessons from the essential judgment standard of British and American law. The third chapter of this paper analyzes the problems arising in the practice of company guarantee. Because the provisions of the company law on guarantee are too principled, there are many problems to be explored and clarified in practice. Including: can the provisions of the articles of association on guarantee bind the third party? Articles of association prohibit foreign guarantee, shareholders (big) meeting, board of directors signed the effectiveness of the guarantee contract how to determine? Board of directors, senior management without authorization to replace shareholders (large) meeting, the board of directors signed the effectiveness of the guarantee contract how to determine? How to determine the validity of the guarantee contract when the agency makes the guarantee resolution in violation of the articles of association, this paper analyzes these problems with the combination of theory and practice.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D922.291.91
【引证文献】
相关硕士学位论文 前2条
1 张国军;公司对外担保法律制度研究[D];中国政法大学;2012年
2 郭青青;公司对外担保行为的效力认定[D];西南政法大学;2012年
，本文编号：2205885
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