Research On The Model Selectiong Of Legal Representative Of Chinese Company

The legal representative is an important system of uniqueness in China.It is born out of the factory director responsibility system with deep practice foundation in China,and played an active role in the process of China's economic system reform and modern enterprise transformation.The company law in 1993 regarded the chairman as the sole legal representative of the company.The identity of the legal representative began to be combined with the power of the chairman.The idea of legal representative gradually began to deviate,and legal representative became to the symbol of leadership and ultimate decider.But the issue of liability is ambiguous,and there are even cases where the company's limited liability is used as a sanctuary for its personal liability,which harms the legitimate rights and interests of the company and other shareholders.With the development of the times and the expansion of the scale of enterprises,the concept of "democratic decision-making,scientific governance" is gradually accepted in the practice of modern corporate governance,and the statutory single representative model needs to be changed.In 2005,the company law revised the legal representative from the unified chairmanship system to a diversified chairman,executive director or manager representative system that can be selected by the company's articles of association.On the surface,it increases the autonomy of the company,but in essence there is no It is impossible to end the theoretical and practical disputes about the legal representative of the company without getting rid of the statutory single representation system.Firstly,most companies still choose the chairman as the legal representative.Secondly,the reform has not fundamentally given the space for corporate autonomy,and the main problems before the reform still exist.Finally,as legal representative,the manager has brought many new problems for corporate governance,which is worth pondering.Corporate governance is inseparable from natural persons,and the legal representative makes expression of intention.In essence,the legal representative should be the carrier of the company's representative right.It does not have the meaning of the company's leader.It only has the right to express corporate decision without the right to make any decision.The legal representative does not have the substantive power to influence the company's business decisions,and does not have the company's leadership or final decision-making power.Its duty is to timely and accurately convey the company's decisions and practice the company's will.Not only that,the legal representative has an independent responsibility as the representative organ,cannot be confused with the duties of its position,and the legal representative needs to be responsible for this mistakes.In terms of extraterritorial law practice,France,Germany,Japan,South Korea and other continental law system counties select board of directors represent as the common model base on the theory of the real legal person.The united states and other angloamerican law system counties choose director represent as the common model base on imitation theory of the legal person.Although there are some differences in details,it has established a group representation system.The “representative” and “agent” systems have the same characteristics.The former is used to explain the relationship between the legal representative and the company,while the latter determines the responsibility between the legal representative and the company.In the process of reform,we should choose a diversified company representative model.Finally,taking into some factors such as the stage of the company and the division of internal staff.The legal representative of China shall choose to take the collective representative of the board of directors as the general principle,and take the executive director or other natural or legal organ authorized by the shareholders' decision as the legal representative as a special case.And establish relevant procedures and regulations to optimize the legal representative model in China.This not only conforms to the development trend of modern corporate governance concept,but also realizes the unification of efficiency value and safety value,which is conducive to protecting the legitimate rights and interests of the company and realizing the scientific and democratic governance of the company.