On February 28th, 2008, Company A signed a loan contract with shareholders A and B of Company B. As stipulated in the contract, Company A loaned 1 10,000 yuan to Party A for a period of three months, and Company B served as a guarantor to provide joint liability guarantee for the above-mentioned loan of Borrower A. Company B agreed to the resolution of the shareholders' meeting on the loan under this contract as an annex to this contract; If Party A fails to repay the loan on time, it shall compensate Party A for the loss of capital occupation during the loan period in addition to four times the loan interest rate of the People's Bank of China for the same period. From the date of overdue, based on the overdue amount, compensate Company A for the loss of capital occupation according to the standard of 2. 1% per day. On the same day, Company A delivered the loan to Company A. At the same time, Party A issued a receipt, which read: "Today, I received RMB 1 million in cash from Company A.. The repayment time is subject to the loan contract signed by both parties on February 28, 2008. " Since then, Company B has not provided the resolution of the company's shareholders' meeting as an annex to the loan contract, and Party A has not repaid the loan principal and interest. Therefore, Company A sued the court, demanding that Company A and Company B jointly repay the loan principal of 6,543,800 yuan and the loss of capital occupation. After hearing the case, the court held that Company B provided a guarantee for the loan of Company A, but Company B could not provide the resolution that shareholders of Company B agreed to guarantee. According to the second paragraph of Article 16 of the Company Law of People's Republic of China (PRC), "If a company provides a guarantee for its shareholders or actual controllers, it must be resolved by the shareholders' meeting or the shareholders' general meeting" and the judicial interpretation of the Guarantee Law of People's Republic of China (PRC). Therefore, the loan contract signed between Company A and Company A and Company B is legal and valid except for the guarantee clauses. Since Party A failed to pay the principal and interest of the loan to Company A as agreed in the loan contract after borrowing, its behavior has constituted a breach of contract and it should bear the liability for breach of contract. Therefore, Party A should repay the loan principal of Company A and pay the loss of capital occupation. Moreover, according to Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC), Company B shall bear half of the civil liability for Party A's arrears. Case analysis This case is a case in which a company provided a guarantee for its shareholders, but the guarantee clause was not passed by the guarantor's shareholders' meeting and was confirmed invalid by the court. The provisions of China's laws on the company's external guarantee are mainly reflected in Article 16 of the Company Law, that is, (1) "The company's investment in other enterprises or providing guarantee for others shall be decided by the board of directors or the shareholders' meeting in accordance with the provisions of the company's articles of association; If the articles of association have limits on the total amount of investment or guarantee and the amount of individual investment or guarantee, they shall not exceed the prescribed limits. " (2) "Where a company provides a guarantee for the company's shareholders or actual controllers, it must be resolved by the shareholders' meeting or the shareholders' meeting. "(3)" The shareholders specified in the preceding paragraph or the person controlled by the actual controller specified in the preceding paragraph shall not participate in the voting on the matters specified in the preceding paragraph. The voting shall be passed by more than half of the voting rights held by other shareholders present at the meeting. "In this case, Company B provided a guarantee for the debt of its shareholder A, and failed to provide the resolutions passed by the shareholders' meeting or shareholders' meeting, let alone procedural documents such as compliance with withdrawal and majority approval. Therefore, the guarantee clause was found invalid by the court. In the case that the main contract is valid and the guarantee contract is invalid, according to Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC), if the main contract is valid and the guarantee contract is invalid and the creditor is not at fault, the guarantor and the debtor shall be jointly and severally liable for the economic losses of the creditors of the main contract; If the creditor and the guarantor are at fault, the part that the guarantor bears civil liability shall not exceed half of the part that the debtor cannot pay off. Company B shall bear corresponding responsibilities according to creditors and their faults. In this case, when the creditor Company A signed the loan contract, it already knew the importance of Company B providing guarantee for Party A's loan and providing the resolution of the shareholders' meeting, and agreed to make it an annex to the contract. Therefore, both Company A and Company B are at fault for the invalidity of the safeguard clause. Therefore, according to the judicial interpretation of China's Guarantee Law, the court ruled that Company B should bear half of the civil liability for the debts owed by Party A, which met the requirements of judicial interpretation. For this case, some people think that from the perspective of protecting the transaction, in the case that Company B has signed the loan contract with its seal as the guarantor, and from the perspective of protecting the bona fide third party, the validity of the guarantee clause should be recognized. Whether Company B makes a resolution on the guarantee is the internal relationship of Company B, and has nothing to do with Company A. This actually involves the understanding of the nature of Article 16 of the Company Law and a bona fide third party. Article 16 of "Company Law" is an effective norm among mandatory norms in law, which requires the parties to abide by and not to violate or modify when conducting company activities. Therefore, when the company provides guarantee for shareholders, it must be resolved by the shareholders' meeting or the shareholders' meeting in procedure. Because once the law is published, it is presumed that the parties know the provisions of the law. In this case, the loan contract also stipulates that a resolution of the shareholders' meeting will be attached. It can be seen that Company A should know that this guarantee must be decided by the shareholders' meeting and does not belong to the scope of bona fide third parties. Even if Company A is a so-called "bona fide third party", violation of this guarantee clause can only be deemed invalid, because Article 16 of the Company Law is a mandatory norm. Therefore, when reviewing the company's guarantee, it is necessary to distinguish whether the guaranteed party is the company's shareholder or the actual controller. If the guaranteed object belongs to the company's shareholders or actual controllers, it must go through the legal procedures of the shareholders' meeting resolution. If the guaranteed object does not belong to the shareholders or actual controllers of the company, it is necessary to review whether the articles of association have special provisions on the amount and procedures of the guarantee. If the guaranteed project and scope are specially stipulated in the articles of association of the company, and the guaranteed project does not meet the requirements, even if the company's shareholders' meeting passes the guarantee resolution, shareholders can still apply to the people's court to cancel the resolution, which ultimately leads to the guarantee project still having no legal effect.
Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.