公司为股东担保的法律效力及商业银行的对策建议

现行银行贷款担保中相当比例是公司为股东担保,其法律效力如何直接关系到银行贷款的安全.我国现行的法律规定并未绝对禁止公司为股东的债务提供担保.允许公司为其股东的债务提供担保既是现实经济生活之需要,亦有利于公司自身的发展,对促进债权实现和维护交易安全均具有积极作用,符合现代立法趋势.商业银行有条件地接受公司为股东提供的融资担保,有利于在防范风险的前提下拓展自己的业务领域.本文提出应修改<公司法>第60条第3款和相关法律法规,建立和完善股东表决权排除制度、董事回避制度、股东诉讼制度和担保信息披露制度,以构建和完善我国公司为股东担保制度.

Legal Force of Guarantee Provided by a Company io Its Shareeholders and Some Countermeasure Proposals to Commercial Banks

Of all bank loan guarantees in force, a considerable number are those provided by companies to its shareholders. The legal force of such a guarantee has a direct bearing on the safety of bank loans. So far there is no legal provision in China that absolutely bans a company from guaranteeing its shareholders against debt. Allowing a company to do so, a practice that actively promotes the realization of the creditor?'s rights, safeguards the safety of transactions and conforms to the trend of modern legislation, is considered practical and conducive to the development of the company. To conditionally accept a company to provide financing guarantee to its shareholders will help a commercial bank to enlarge its business scope provided risks are avoided. It is proposed that Article III under Clause 60 of the" Company Act "and relevant rules and regulations be amended. At the same time, the system of nullification of shareholders?' voting rights; the system of director?'s withdrawal; the system of law suiting by shareholders and the system of disclosure of guarantee information shall be established and perfected so that there will be a sound system where companies can guarantee their shareholders