论我国公司关联担保的法律规制

发布时间：2019-05-17 09:35

【摘要】：所谓关联担保，是指发生在两个以上具有关联关系的公司之间的担保，其主体之间可能是形式上存在这种关联关系，如母公司与子公司之间，也可能是形式上不存在但实质上存在关联关系，如控制公司与被控制公司。与一般担保相比，二者之间最主要的不同之处就在于担保关系中主体的特殊性。在关联担保中，主体是关联公司【1】，这些关联公司在形式上具有独立的法人格。但现实生活中，由于这些主体之间存在资金、经营、股权等方面特殊的利益关系，使其一方面较不具有这种特殊关系的主体更容易获得担保，另一方面也存在这些主体中的控股股东利用这种特殊关系，使它们之间形成事实上的支配与从属关系的可能性，导致关联担保变成利益输送的一条重要渠道，而传统的合同法、担保法等法律对此种情形也是束手无策，加上关联担保的担保金额较一般担保金额大的多且普遍的多，因此关联担保比一般担保也具有更大的危害性。公司关联担保的产生与关联公司的产生日益普遍密切相关，是一种正常的经济现象。其对于扩大公司经营规模、提高公司整体竞争力和维续公司的长远发展都起到重要的作用，但在肯定关联担保益处时，还应该考虑到，一旦关联担保未得到合理的规制，发生的不公允关联担保将对市场经济监控、稳定的经营秩序产生极大地威胁。正是如此，我国法律也对其进行了特别的规定.但是由于现行相关法律体系不完善，还存在很多问题，导致不公允关联担保的现象普遍存在并有扩大之势，严重破坏了我国公司独立人格制度，，也侵害了公司、公司中小股东和公司债权人利益。因此，对于关联担保这原本中性的制度，在认可其有利一面的同时时，如何从法律角度有效的防范不公允关联担保的发生，对其进行合理的规制，既是当前法学理论界又是本文急需探讨并有待解决的问题。本文将规制关联担保特别是不公允关联担保作为贯穿全文的线索，对我国现行相关法律体系进行系统分析。并以保护公司、中小股东、债权人等利益相关者的利益为出发点，考察其它国家和地区相关的立法和制度。加以学理比较分析，并在此基础上立足我国国情，提出对我国关联担保进行规制的相关法律建议。按照上述思路，本文大致可以分为五个部分：第一部分主要针对我国现行关联担保的相关法律制度进行分析，并提出其中存在的问题。第二部分主要是介绍其它国家和地区规制关联担保的相关法律制度。第三部分主要是比较我国规制关联担保的相关法律制度与其它国家和地区的之间存在的异同，出现该异同的原因，最后给出了规制我国公司关联担保的总体思路。第四部分是结合第三部分给出的总体思路，提出了完善我国现行相关法律制度的建议。最后部分是对本文的一个总结。
[Abstract]:The so-called affiliated guarantee refers to the guarantee that occurs between more than two companies with a related relationship, and its subject may have such a formal relationship, such as between the parent company and the subsidiary company. It may also be that there is no formal but substantially related relationship, such as the controlled company and the controlled company. Compared with the general guarantee, the most important difference between the two lies in the particularity of the subject in the guarantee relationship. In the affiliated guarantee, the subject is the affiliated company [1], these affiliated companies have independent legal personality in form. However, in real life, because of the special interest relationship among these subjects, such as capital, management, equity and so on, on the one hand, it is easier for the subject to obtain the guarantee than the subject who does not have this special relationship. On the other hand, there is also the possibility that the controlling shareholders in these subjects make use of this special relationship to form a de facto dominant and subordinate relationship between them, which leads to the transformation of affiliated guarantee into an important channel for the transmission of interests, while the traditional contract law, The law of guarantee and other laws are also helpless to this situation, in addition, the amount of guarantee of affiliated guarantee is much larger and more common than the general amount of guarantee, so the guarantee of affiliated guarantee is also more harmful than the general guarantee. The emergence of corporate affiliated guarantee is closely related to the emergence of affiliated companies, which is a normal economic phenomenon. It plays an important role in expanding the operating scale of the company, improving the overall competitiveness of the company and maintaining the long-term development of the company. However, when confirming the benefits of affiliated guarantee, it should also take into account that once the affiliated guarantee is not reasonably regulated, The unfair related guarantee will pose a great threat to the market economy monitoring and stable business order. It is precisely this, the law of our country has also carried on the special stipulation to it. However, due to the imperfection of the current relevant legal system, there are still many problems, which lead to the widespread existence and expansion of unfair affiliated guarantee, which seriously destroys the independent personality system of our company and infringes on the company. The interests of minority shareholders and creditors of a company. Therefore, for the original neutral system of affiliated guarantee, when recognizing its favorable side, how to effectively prevent the occurrence of unfair affiliated guarantee from the legal point of view and regulate it reasonably. It is not only the current legal theory circle, but also the urgent need to discuss and need to be solved in this paper. This paper takes the regulation of affiliated guarantee, especially unfair affiliated guarantee, as a clue throughout the full text, and makes a systematic analysis of the current legal system of our country. Based on the protection of the interests of companies, minority shareholders, creditors and other stakeholders, this paper examines the relevant legislation and systems in other countries and regions. On this basis, based on the national conditions of our country, this paper puts forward some relevant legal suggestions to regulate the related guarantee in our country. According to the above ideas, this paper can be divided into five parts: the first part mainly analyzes the current legal system of affiliated guarantee in our country, and puts forward the existing problems. The second part mainly introduces the relevant legal system of regulating affiliated guarantee in other countries and regions. The third part mainly compares the similarities and differences between the relevant legal systems of regulating affiliated guarantee in our country and other countries and regions, and the reasons for the similarities and differences, and finally gives the overall thinking of regulating the related guarantee of companies in our country. The fourth part is combined with the overall thinking of the third part, put forward some suggestions to improve the current legal system in our country. The last part is a summary of this paper.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D922.291.91

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