Viewpoint... Analysis of the effectiveness of a one-person limited liability company's guarantee for its shareholders.

Published:

2021-12-17

一、问题提出     《中华人民共和国公司法》（以下简称《公司法》）第十六条规定了公司对外担保制度，规定如下：   “公司向其他企业投资或者为他人提供担保，依照公司章程的规定，由董事会或者股东会、股东大会决议；公司章程对投资或者担保的总额及单项投资或者担保的数额有限额规定的，不得超过规定的限额。   公司为公司股东或者实际控制人提供担保的，必须经股东会或者股东大会决议。   前款规定的股东或者受前款规定的实际控制人支配的股东，不得参加前款规定事项的表决。该项表决由出席会议的其他股东所持表决权的过半数通过。”   《公司法》第十六条的第二、第三款是关于公司为股东或者实际控制人提供担保的规定，《公司法》对这种担保进行了程序上的限制，即由“其他股东”对担保进行表决，由此便产生一个问题，如果没有“其他股东”对外担保应如何表决。一人有限责任公司包括自然人独资的有限责任公司和法人独资的全资子公司两种情况，因一人公司不设股东会，如果依据《公司法》第十六条第二、第三款规定的股东会根本无法召开，此时公司能否为股东提供担保就成为了疑问。换句话说，一人有限责任公司为其股东提供担保的效力及后果如何？   在《民法典》和《最高人民法院关于适用<中华人民共和国民法典>Prior to the introduction of the Interpretation of the Guarantee System, there was considerable controversy in judicial practice regarding the effectiveness of a one-person company's guarantee for its shareholders. One point of view is that according to the provisions of paragraphs 2 and 3 of Article 16 of the Company Law, when a company provides guarantees for its shareholders, it must be resolved by the shareholders' meeting or the shareholders' meeting, and the guaranteed shareholders are not allowed to participate in the voting. The voting is approved by more than half of the voting rights held by other shareholders present at the meeting. In the case of a one-person company providing guarantees for shareholders, not only can it not form an effective shareholders' meeting resolution, it cannot even convene a shareholders' meeting, therefore, a contract entered into by a one-person company to provide security for shareholders should be considered invalid. Another view was that, according to article 63 of the Companies Act, the personality of a one-person company was presumed to be confused with the personality of its shareholders, and that, therefore, the provision of a guarantee by a one-person company for its shareholders should be understood as a guarantee by the company for itself, even if the company was unable to form a valid resolution in that regard, it would not affect the validity of the guarantee. 2. classic case 1. Viewpoint 1: The provisions of Article 16 of the Company Law are regulatory rather than effective norms. Case No.: Supreme People's Court (2012) Minti Zi No. 156 Case excerpt: The Court believes that the focus of the dispute between the parties in this case is the definition of the responsibility of the guarantor Zhenbang Co., Ltd. In view of the fact that the loan contract involved in the case has been determined to be valid for a court of second instance, and the applicant for retrial has no objection to this, the Court directly confirms the validity of the loan contract involved in the case. The Mortgage Contract and the Irrevocable Guarantee are guarantees made by the guarantor Zhenbang Co., Ltd. to the creditor Donggang Branch of China Merchants Bank for the liabilities of its shareholder Zhenbang Group Company. As a company organization and corporate behavior, it is regulated by the Company Law, and its external guarantee in the form of contract is also subject to the contract law and the security law. The determination of the validity of the company's guarantee contract in the case, because it does not go beyond the scope of the contractual act between equal commercial subjects, should first be judged from the relevant provisions of the contract law. With regard to the validity of a contract, Article 52 of the the People's Republic of China Contract Law (hereinafter referred to as the Contract Law) stipulates that "a contract shall be null and void under any of the following circumstances. ...... (V) violate the mandatory provisions of laws and administrative regulations". Regarding the "mandatory" in the aforementioned law, Article 14 of the Supreme People's Court's "Interpretation (II) on Several Issues Concerning the Application of the the People's Republic of China Contract Law" (hereinafter referred to as the Contract Law Interpretation II) makes the following interpretation and stipulates that "The" mandatory provisions "stipulated in Item (V) of Article 52 refer to effective mandatory provisions". Therefore, the law and relevant judicial interpretations have made it clear that violation of the mandatory norms of validity in laws or administrative regulations is one of the criteria for determining the validity of contracts. As a legal entity different from a natural person, the company's contractual behavior, while accepting the regulation of contract law, is subject to the company law as a special norm of the company. Article 1 of the Company Law clearly stipulates that "in order to regulate the organization and behavior of companies, protect the legitimate rights and interests of companies, shareholders and creditors, maintain social and economic order, and promote the development of the socialist market economy, this law is formulated". Article 16, paragraph 2, of the Company Law stipulates: "Where a company provides guarantees for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders". The above-mentioned provisions of the Company Law have made it clear that its legislative intent is to restrict the subject behavior of the company and prevent the actual controller or senior management of the company from harming the interests of the company, minority shareholders or other creditors, so its essence is an internal control procedure, which cannot be used to restrain the counterparty of the transaction. The above provisions should therefore be understood as regulatory peremptory norms. In principle, it is inappropriate to find the contract invalid in violation of this norm. In addition, if it is determined as a criterion of validity, it will reduce the efficiency of transactions and damage the security of transactions. For example, when the shareholders' meeting will be held, in what form, and who can express the true will on behalf of the shareholders are beyond the judgment and control ability of the counterparty of the transaction. If the contract is ruled invalid by violating the shareholder resolution procedure, it will definitely reduce the transaction efficiency. At the same time, it also leaves a system gap for the company to easily violate the shareholder resolution and claim that the contract is invalid, ultimately endangering the transaction safety, it is not only against the rules of good faith in commercial conduct, but also against fairness and justice. Therefore, 1. the court of second instance in this case, on the grounds that the resolution of the "guarantee resolution of the shareholders' meeting" involved in the case has not been approved by the shareholders' meeting of Zhenbang Co., Ltd., and Zhenbang Co., Ltd. has not held a shareholders' meeting on this matter, according to Article 16 of the Company Law, it is an error of applicable law to make a determination that the irrevocable guarantee and the mortgage contract are invalid, and the court will correct it. 2. Viewpoint 2: Article 16 of the Companies Act does not apply to one-person limited liability companies. Case No.: Sichuan Higher People's Court (2014) Chuan Min Di Zi No. 334 Excerpts from the case: the issue of the law applicable to the original judgment. 1. Whether the Ritz Hotel is liable for the guarantee. First of all, the "the People's Republic of China Company Law" and related judicial interpretations do not clearly stipulate whether a one-person limited liability company can provide guarantees for shareholders' debts, and based on the principle of freedom of contract, a one-person limited liability company can guarantee shareholders' debts. Secondly, Article 16 of the the People's Republic of China Company Law stipulates: "if a company invests in other enterprises or provides guarantee for others, it shall be decided by the board of directors or the shareholders' meeting or the general meeting of shareholders in accordance with the provisions of the articles of association; if the articles of association stipulate the total amount of investment or guarantee and the amount of individual investment or guarantee, it shall not exceed the prescribed limit. Where a company provides a guarantee for the shareholders or actual controllers of the company, it must be resolved by the shareholders' meeting or the general meeting of shareholders. The shareholders specified in the preceding paragraph or the shareholders 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 vote was passed by a majority of the voting rights held by other shareholders present at the meeting." The legislative purpose of this article is to restrict related party transactions. The guarantee provided by the company for shareholders or actual controllers is a related party transaction, which may harm the interests of the company and other shareholders. Therefore, the second paragraph of Article 16 of the the People's Republic of China Company Law stipulates that the provision of related party guarantee for shareholders or actual controllers must be voted by the shareholders' meeting or the general meeting of shareholders, and cannot be decided by the board of directors through the articles of association. At the same time, the third paragraph of the article stipulates that shareholders or shareholders controlled by actual controllers shall abstain from voting. It can be seen that the law does not prohibit related guarantees, but through a special resolution mechanism in the internal governance of the company to achieve the risk control of related guarantees. For a one-person limited liability company, there is only a single shareholder, and there is no situation in which major shareholders use related party transactions to harm the interests of the company or minority shareholders. After long Zhaogang and Zhou Lin transferred their shares to Yang Guang in this case, the company is a one-person company and does not have the prerequisites for the application of paragraphs 2 and 3 of Article 16 of the the People's Republic of China Company Law. Furthermore, Article 61 of the the People's Republic of China Company Law stipulates: "A one-person limited liability company shall not have a shareholders' meeting. When the shareholders make the decisions listed in the first paragraph of Article 38 of this Law, they shall be in writing and shall be signed by the shareholders and kept in the company." Therefore, a one-person limited liability company does not have a shareholders' meeting, so it is naturally impossible to establish a shareholders' meeting and form a resolution of the shareholders' meeting. The ownership and management rights of the company are not separated and are exercised by the owner of the company, that is, the sole shareholder. Since the shareholders of a one-person limited liability company can exercise all the functions and powers of the shareholders' meeting, it should include making a decision that the company guarantees the debts of the shareholders. Therefore, Article 16 of the the People's Republic of China Company Law does not apply to one-person limited liability companies. 3. the views of our lawyers Due to the lack of community nature of one-person companies, there has been considerable controversy over whether the Company Law should recognize one-person companies in the process of amending the Company Law. The Company Law, as amended in 2005, adopts a compromise approach, I .e., while recognizing a one-person company, adopts an inversion of the burden of proof, providing that shareholders are jointly and severally liable for the debts of the company if they are unable to prove that the company's property is independent of their own property. In the case of a one-person company providing a guarantee for shareholders, whether the guarantee contract is found to be invalid because there is no resolution of the shareholders' meeting is a more controversial issue in practice. We believe that the company law makes it clear that its legislative intention is to restrict the main body of the company and prevent the actual controller or senior management of the company from harming the interests of the company, minority shareholders or other creditors. Therefore, its essence is an internal control procedure, which cannot restrict the counterparty of the transaction. Although a one-person company has an independent personality in form, in the case that the shareholders do not prove that the company's property is independent of the shareholder's property, the personality of the company will be presumed to be confused with the personality of the shareholders, so we can understand the guarantee provided by a one-person company to the shareholders as the company guarantees its own debts, and the company resolution is not a necessary condition. In other words, if a one-person company, after providing a guarantee for shareholders, requests the people's court to determine that the guarantee contract is invalid on the grounds that there is no resolution of the shareholders' meeting, the people's court shall not support it. In addition, the Supreme People's Court on the application of<中华人民共和国民法典>有关担保制度的解释》第10条对上述观点提供了法律依据，“一人有限责任公司为其股东提供担保，公司以违反公司法关于公司对外担保决议程序的规定为由主张不承担担保责任的，人民法院不予支持。公司因承担担保责任导致无法清偿其他债务，提供担保时的股东不能证明公司财产独立于自己的财产，其他债权人请求该股东承担连带责任的，人民法院应予支持。”综上，我所律师倾向于认为一人有限责任公司为股东提供担保具有法律效力，在没有公司决议的情况下公司以违反对外担保决议程序主张不承担担保责任的不应得到支持。</中华人民共和国民法典></中华人民共和国民法典>

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