An Empirical Study On Validity Of Unauthorized Guarantee Of Corporate Legal Representative

A corporation has the ability to provide a guarantee to someone else with its own independent personality,which is affirmed by the existing Company Law.Within the scope of authorization,the legal representative can exercise the right on behalf of company surely.But,without the scope of authorization,it does not formulate how to measure the effective by law.Contrary to the state of busts in legislation,the incidence of such cases in judicial practice continues uptrend,and more often shows complicated.There are also many different opinions on the validity of unauthorized guarantee in theoretical and practical circles.Both theory and practice promote each other.Law is a practical discipline,and analyzing this from empirical point of view will contribute to exploring much more completed referee path.From the practical point of view,such cases have the following characteristics:more stakeholders involved,difficult to trial and high appeal rate.Most of these cases occurred in Jiangsu,Zhejiang and Guangdong provinces.On the trial procedure,most of them are trialed by intermediate or senior people's courts,even contains the Supreme People's Court.In terms of the verdict,the majority of guarantee contracts are valid.From these cases,it can be found that court's referee path still starts with Art.16 of the "Company Law".After determining the nature of Art.16,the judge decides to apply Art.50 of the "Contract Law" or interpretations of the "Guarantee Law "Art.11.Although this kind of referee path has its rationality,judging from the acceptance of judgments in society,it is necessary to consider the referee path.The current referee path has some limitations in the following aspects:understanding of the law,recognition of goodwill,attribution of the consequences of the act.And these limitations also are dispute focus.The sample reflects that some courts still have doubts about the nature of Art.16 of the Company Law,which is often reflected in the judgments of different courts on the same case.The debate on evaluation of relative "goodwill" is concentrated in the following three areas:the presumption of "should not know",the validity of "exception" and the rationality of review obligations.The attribution of behavioral consequences is closely related to the presumption of "goodwill",which led to the case entering the appeals process.Only concentrate on the dispute focus,the better referee path will be explored.Art.61 of the "General Provisions of the Civil Law" provides a new idea for the referendum of the legal representative's ultra vires case.Declaration of will and delegate authority become the key of trail.In terms of legal system interpretation,Art.16 of the "Company Law" should be established as a mandatory administrative point.This article should be used as the basis which the company pursue legal representation against the legal representative.And it is necessary to dilute its role as a "starting point for trial".Declaration of will is evaluation principle whether the relative's subjective meaning is good or not.The author believes that "goodwill"should be deconstructed.The case named J.I.Case Credit Corporation v.First National Bank of Madison Country can provided some references.We can divide the"goodwill"into four categories as follow:"flawless" goodwill,"flawed" goodwill,"not malicious" and "real malicious".The behavior will be invalid,if the relative is in a real malicious situation.The obligation of review should be regarded as an important evaluation mechanism for determining the subjective "goodwill" of the relative person,and,different subjects should be distinguished.The natural should examine the material formally.If the creditor is a corporate,the range should be broader but expect the authenticity of the material.Determining whether the consequences of the guarantee made by the representative on behalf of the legal person should be attributed to the legal person is the prerequisite for guaranteeing the validity of the contract.In order to ensure the rationality and legality of adjudge,the attribution of the consequences should be based on the delegate authority of the legal representative,while also measure the interests of all parties.