| Over the years,the judicial practice of the company’s ultra vires guarantee contract effectiveness of the judgment path is complex,different opinions Article 16 of the company law lacks provisions on the legal effect of ultra vires guarantee contract,which leads to differences in the normative nature of Article 16 between the practical and theoretical circles.In addition,under the company law,there is a contradiction between the scope of the legal representative’s power of representation and the scope of the effectiveness of the articles of association,as well as the conflict between the contract law,guarantee law and the company law,All these are the reasons why it is difficult to judge the effect of the company’s ultra vires guarantee contract The minutes of the Ninth People’s Congress focuses on the principle of balancing interests,unifies the judgment path of the effectiveness of the company’s guarantee contract,introduces the "apparent representative" system,and solves various problems in the actual judgment of determining the effectiveness of the company’s ultra vires guarantee contract through the creditor’s good faith judgment standard.The civil code is consistent with the minutes of the Ninth People’s Congress,eliminating the conflict of legal provisions,The judicial interpretation of the guarantee system in the civil code inherits most of the rules of the minutes of the Ninth People’s meeting,but there are some problems such as the vague standard of the creditor’s good faith and the vague scope of the legal representative’s representation.When the company law is about to be amended,special provisions will be made through special chapters and funds to make the legal effect of Article 16 more clear.The company’s external guarantee system is the scope of the company’s autonomy of will,the process of game balance between the interests of the company and its shareholders and creditors,and the mandatory management norm.The scope of the legal representative’s right of representation is more clearly defined,which is divided into "normal business scope" and "abnormal business scope".Within the "normal business scope",the legal representative has independent right of representation without authorization of the company.To refine the judgment standard of good faith,the creditor should undertake the formal review obligation of "elastic standard".If the creditor has fulfilled the duty of care of "quality and quantity",it is good faith.We should classify the listed companies,banks and financial companies in good faith,realize the electronic guarantee registration system and the company’s articles of Association registration system,and establish a unified system of the effectiveness of the company’s guarantee contract. |
