Sometimes a company may need to guarantee other companies or individuals in the name of the company for business or other reasons. But the company's external guarantee is definitely risky. Therefore, the company guarantee needs to meet the requirements before it can take effect. The provisions of China's "Company Law" on external guarantee require companies to abide by when providing external guarantee.
1. What are the provisions of the company law on external guarantee?
Article 16 of the Company Law: 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 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.
(1) The adoption method of the guarantee resolution stipulated in the Articles of Association.
The Company Law stipulates that a 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 articles of association.
It can be seen that whether the guarantee is passed by the shareholders' meeting or the board of directors can be directly stipulated in the articles of association.
(2) Legal guarantee resolutions that must be passed by the shareholders' meeting.
According to the Company Law, if a company provides guarantee for "shareholders" or "actual controllers", it must be resolved by the shareholders' meeting or the shareholders' meeting.
In other words, the guarantee for the company's shareholders and actual controllers must be approved by the shareholders' meeting, not by the board of directors through the articles of association.
In addition, the "listed company" should specify the authority of the shareholders' meeting and the board of directors to approve external guarantees in the company's articles of association.
What should be considered and approved by the shareholders' meeting is that the total external guarantee of listed companies and their holding subsidiaries exceeds 50% of the latest audited net assets; Guarantees provided for the guaranteed objects with asset-liability ratio exceeding 70%; Single guarantee with an amount exceeding 10% of the latest audited net assets; Guarantees provided to shareholders, actual controllers and their related parties. If the guarantee amount of a listed company exceeds 30% of the company's total assets within one year, it shall be decided by the shareholders' meeting and approved by more than two-thirds of the voting rights held by the shareholders present at the meeting.
Second, what are the conditions for the company's external guarantee?
1. The guarantor must be an enterprise legally established by the guarantor at home and abroad and directly or indirectly controlled;
2, the guarantor shall not be a loss-making enterprise for three consecutive years, except for resource development enterprises; Net assets should be positive;
3. Requirements for the guarantor: the guarantee balance shall not exceed 50% of the net assets, and the ratio of net assets to total assets shall not be less than 65,438+05%;
4. The debtor's own property is used as debt guarantee without approval;
5. The guarantee performance shall be examined and approved one by one, and the settlement of foreign exchange funds recovered after performance shall be examined and approved one by one;
6. Go to the foreign exchange bureau for registration within 15 days after signing the foreign guarantee contract.
3. What are the precautions for the company's external guarantee?
1. The amount of external guarantee is not limited by the proportion of the guarantor's equity investment.
2. The principal debt funds under the financing guarantee shall not be transferred back to China for use in the form of direct investment, securities investment and loans.
3. The non-financing bank guarantee may not stipulate the specific authority and amount in the contract.
4. Cancel the requirement for the guarantor's foreign exchange income.
5. External counter-guarantee: The counter-guarantee provided to overseas institutions is included in the management of external guarantee, while the counter-guarantee provided to domestic institutions is not included in the management of external guarantee.
If a company wants to provide external guarantee, it needs to be approved by the shareholders' meeting, that is to say, if the voting rights of the shareholders' meeting exceed 2/3, the company can formally provide external guarantee. In addition, the company law also restricts the conditions of the company's external guarantee, mainly to avoid bringing some unnecessary debt and creditor's rights risks to the company.