《公司法》有关公司对外担保新规定的质疑

新修改的《公司法》有关公司对外担保问题的规定,对于规范公司担保秩序有一定的积极意义,但是这些规定也有明显的局限性,主要表现在:规则的自律性和强制性交融,担保的合法有效性未得到明确;法条过于简洁,牺牲了规则的精确性,导致规则的不确定性;过度追求交易安全,片面要求股东大会对担保事项决议,损害交易效率;未给特殊的公司类型留下特别的空间,妨碍公司日常业务的合法开展;法律本身的缺憾加上有关监管规章的未紧密配套,使得有关缺憾更加明显。

New Provisions in the Companies Act Concerning the Guaranty Given by the Company

In the newly revised Companies Act some provisions are added concerning the guaranty given by the company.Though the supplementary provisions play an active role in regulating companies'activities of guaranty, they have some obvious defects:overlapping of self-discipline and compulsory punishment,lack of clarification of the legitimacy of guaranty,and too much simplicity(so that accuracy and certainty are scarified),excessively pursuing safety and one-sidedly requiring that guaranty is subject to the resolution of the general meeting of shareholders(so that efficiency of transaction is impaired),and no provision related to special companies(so that their routine busi- ness is hindered).Furthermore,since no implementing regulations keep company,the inherent defects of the Act appear more protrusive.As for the defects,this paper advances some specific proposals on the improvement of rele- vant provisions.