从决议主义到披露主义--上市公司担保合同效力裁判逻辑的流变与重释

From Resolutionism to Disclosureism--The Evolution and Reinterpretation of the Adjudication Logic of the Effectiveness of Guarantee Contracts of Listed Companies

上市公司担保合同效力裁判逻辑近两年内来几经流变,判断依据渐由公司担保决议有无转向根据披露与否。个中原因在于司法机关实欲以合同效力为切入点,协同监管部门全面落实担保信息披露制度,整治上市公司违规暗保乱象。尽管通过“披露挂钩合同效力”规则的安排,倒逼相对人督促公司进行披露的思路可取,然而“相对人仅可根据披露而不可单凭决议自证善意”与“纵有决议,未根据披露合同仍不生效力”的现行表述,分别面临规范逻辑悖谬与法律依据缺位的现实桎梏。越权担保合同与违规暗保合同各自的核心问题与法律效果殊异,不可一概而论。在肯定前者乃因决议缺位且相对人难言善意而不成立地无效,后者系拒不披露实有害投资者正当利益而违法地无效的基础上,应对《担保解释》中以披露取代决议的安排予以调整,或另以立法确认的方式将披露拟定为上市公司担保合同生效要件。

The logic of adjudication of the effectiveness of guarantee contracts of listed companies has changed several times in the past two years,and the basis of determination has gradually turned from the presence or absence of the listed company’s guarantee resolution to whether the counterparty entered the contract based on the disclosure announcement.The reason for which is that the judiciary aims to adopt the effectiveness of the guarantee contract as an entry point to comprehensively implement the guarantee information disclosure system in collaboration with the regulatory authorities and rectify the chaotic situation of listed companies providing illegal hidden guarantee.Despite the governance idea of promoting and even forcing the counterparty to urge the company to comply with the rules of disclosure by implementing the rule of“disclosure is tied to the effectiveness of the guarantee contract”has its merits,the rules that“the counterparty can only rely on the disclosure but not solely on the resolution to prove its good faith”and“even if there is a resolution,the guarantee contract is not valid if the counterparty entered into such contract not based on disclosure”face the realistic shackles of paradoxical normative logic and lack of legal foundation,respectively,and need to be reinterpreted.The core issues and legal effects of a contract of ultra vires guarantee and a contract of providing illegal hidden guarantee are different and cannot be discussed in the same way.On the basis of the recognition that the former is invalid because of the absence of a resolution and the counterparty’s lack of good faith,and the latter is invalid because the refusal to disclose is harmful to the legitimate interests of investors,it is recommended that the arrangement of replacing resolution with disclosure under Article 9 of the Interpretation of the Supreme People’s Court on Application of the Security System under the Civil Code of the People’s Republic of China be adjusted,or disclosure could be drew up by legislative confirmation as an effective prerequisite of the guarantee contract of listed companies.