I. Guarantee
Guarantee refers to the legal system that the parties realize their creditor's rights in order to urge the debtor to perform his debts according to the law or the agreement between the two parties. Guarantee is usually concluded by both parties, and guarantee activities should follow the principles of equality, voluntariness, fairness, honesty and credibility. The guarantee methods include guarantee, mortgage, pledge, lien and deposit.
Two. How many shareholders agree to the company's external loans or guarantees?
A company can provide guarantee for others or shareholders, but it should follow specific procedures.
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.
Shareholders specified in the preceding paragraph or shareholders controlled by actual controllers specified in the preceding paragraph shall not participate in voting on matters specified in the preceding paragraph, and voting shall be passed by more than half of the voting rights held by other shareholders present at the meeting.
The provisions of the Company Law on voting on foreign loans: Unless otherwise specified in the articles of association of the company or agreed by the shareholders, the directors and managers of the company shall not lend the assets of the company to others without authorization. For a limited liability company, it needs to be approved by shareholders representing 1/2 or more voting rights; For a joint stock limited company, it needs to be approved by more than half of the voting rights held by shareholders present at the meeting. This is the general resolution of the shareholders' meeting.
Three. Matters needing attention in guarantee
1. Guarantee methods: general guarantee and joint and several liability guarantee. The guarantor and the creditor have not agreed on joint liability guarantee.
2. Guarantee period: The Guarantee Law stipulates that the guarantee period (if there is no agreement) is six months. If there is an agreement, it shall be followed.
3. If the parties to the main contract collude to defraud the guarantor to provide a guarantee, and the creditor of the main contract uses fraud, coercion and other means to make the guarantor provide a guarantee against the true meaning, the guarantor shall not be liable for the guarantee.
4. The guarantor has the right to recover from the debtor after assuming the guarantee responsibility.
legal ground
company law
Article 16 The company's investment in other enterprises or providing guarantee for others shall be decided by the board of directors, shareholders' meeting or shareholders' meeting in accordance with the provisions of the company's articles of association; Where the articles of association stipulate limits on the total amount of investment or guarantee and the amount of individual investment or guarantee, it shall not exceed the prescribed limits.
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.
Shareholders specified in the preceding paragraph or shareholders controlled by actual controllers specified in the preceding paragraph shall not participate in voting on 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.
Article 42 At the shareholders' meeting, shareholders shall exercise their voting rights in proportion to their capital contribution; However, unless otherwise stipulated in the articles of association.