deliberately violate/break/flout the law
The academic counseling team provides a one-stop solution for NPC law postgraduate entrance examination.
From the column of knowing and doing law: NPC law postgraduate entrance examination
Test situation analysis
Through the analysis of real questions, we can find the high-frequency proposition points of teachers, such as 20 17 and 20 18, and investigate the understanding of mandatory norms. For example, whether the mandatory norms are divided into effective mandatory norms and administrative mandatory norms is strict, and the Supreme Court's two ways to deal with the judgment of Article 16 of the Company Law (the nature of norms and the limitation of legal authority) and so on. The essay questions are also based on basic knowledge to examine the candidates' system orientation and knowledge series ability. The analysis questions of re-examination cases are based on the guiding cases of the Supreme People's Court 1, and the importance of announcement cases and guiding cases for preparing for the exam can be seen.
Part I: Written part
Initial entrance examination for postgraduate entrance examination
First, the material analysis problem
Article 16 of the Company Law stipulates: "The company's investment in other enterprises or providing guarantees for others shall be decided by the board of directors or the shareholders' meeting in accordance with the provisions of the company's articles of association; Where the articles of association stipulate limits on the total amount of investment or guarantee and the amount of individual investment or guarantee, it shall not exceed the prescribed limits. Where a company provides a guarantee for the company's shareholders or actual controllers, it must be resolved by the shareholders' meeting or the shareholders' meeting. Shareholders specified in the preceding paragraph or shareholders controlled by actual controllers specified in the preceding paragraph shall not participate in voting on matters specified in the preceding paragraph. The voting shall be passed by more than half of the voting rights held by other shareholders present at the meeting. "
A and C are long-term partners. Company B lends money to Company A, and Company C provides guarantee. The legal representative of Company C directly provided the letter of guarantee and stamped with the seal of Company C without the resolution of the shareholders' meeting .. At present, Company A is unable to perform its debts, and Company B requires Company C to assume the guarantee responsibility. The shareholders of Company C believe that the letter of guarantee issued by Party A in the Articles of Association must be approved by the shareholders' meeting, and Company B has not requested the meeting materials, so the guarantee behavior is invalid.
Question 1: What kind of legal norm is this legal provision? What's the effect? (7 points)
analyse
This topic examines the nature of Article 16 of the Company Law, which can be grasped by combining with Gao Shengping's paper.
Detailed answer
Article 16 of the Company Law is the authoritative norm of private law. Breaking the law does not affect the validity judgment. Whether a specific contract is valid or not needs to be tested by the validity judgment rules in Article 143 of the Civil Code.
From the perspective of formal logic, the mandatory provisions of management and effectiveness are not a complete generalization of mandatory norms. There is also a norm in the mandatory provisions of civil law that does not affect the validity judgment of legal acts, that is, the power norms in private law violate the power norms in private law and do not affect the validity judgment, such as Article 48 of the original Contract Law (now Articles 17 1 of the Civil Code) and Article 50.
Article 48 of the former Contract Law (now article 17 1 of the Civil Code) only deals with the law of contract formation.