论公司对外担保合同的效力——兼评《公司法》第149条第3款

On Effect of Contracts to Provide Guarantee by Company——Review on Article 149( 3) of the Company Law

《公司法》第16条与第122条均不属于效力性规范,仅是公司的内部管理规范。除非公司证明债权人知道或者应当知晓公司董事违反公司章程的情况下还接受公司的对外担保,否则公司的对外担保行为有效;若公司章程未就对外担保事项作规定,应将对外担保作为董事会的决议事项,使担保权人、公司、公司自身的债权人以及公司中小股东的利益能够获得适当的平衡。在对外担保合同无效时,《担保法》及其司法解释过于注重对债权人的保障而忽略了对公司利益的维护,有必要予以适当修正。

This essay holds that Articles 16 and 122 of the Company Law are company＇s internal regula- tory norms rather than those with legal binding effects. Unless the company can prove that the creditor, by ac- cepting guarantees from the company, knows or should have known the director＇ s violation of the company charter, the conduct of providing guarantee by the company is effective. In the absence of regulations on provi- ding guarantee by the company charter, the board of directors should he entitle to decide such issues, so as to properly balance interests among creditors for guarantee, the company and its creditors, and minority share- holders of the company. Where the contract to provide guarantee is invalid, the Guarantee Law and pertinent judicial interpretations have overemphasized the protection of creditors＇ interests by ignoring the company＇ s interests, which should be properly corrected.