Research On The Perfection Of The Transfer System Of The Right To The Use Of Homesteads

In response to the issue of the determination of the validity of the company’s ultra vires guarantee contract,the latest "Interpretation of the Supreme People’s Court on the Application of the Civil Code of the People’s Republic of China on the Guarantee System"(hereinafter referred to as the "Judicial Interpretation of the Guarantee System")was published in the Minutes of the Jiumin Conference "On the basis of the regulations.However,after the"Minutes of the Nine Peoples Conference" was issued,there are still issues regarding the understanding and application of Article 16 of the Company Law and Article 504 of the Civil Code,and the issue of standards for the good faith determination of counterparts,both theoretically and in judicial practice.The Judicial Interpretation of the Guarantee System also did not give a positive response to this.Therefore,it is very necessary to explain the above issues to regulate the application of the "Judicial Interpretation of the Guarantee System."Article 16 of the "Company Law" is the primary link for judging the effectiveness of a company’s ultra vires guarantee contract.It is the basis for judging that the company’s legal representative’s actions constitute ultra vires,rather than the direct basis for judging the effectiveness of the company’s external ultra vires guarantee.The specific judgment of the legal representative of the company constitutes ultra vires,should consider the autonomy of the company will,that is,the legal representative does not pass the shareholders(general)meeting or the board of directors resolution to external guarantee,can not be regarded as ultra vires behavior,but also need to consider exceptions.Article 504 of the "Civil Code" is a clause for judging the attribution of the effect of the legal representative’s ultra vires guarantee.That is,if the counterparty of the transaction is in good faith,the company’s ultra vires guarantee contract becomes effective for legal persons;if the counterparty of the transaction is not in good faith,the guarantee contract signed by the legal representative beyond the restrictions of the law or the company’s articles of association shall be combined with Article504 of the Civil Code and the "Civil Code".The legislative intent of Article 61,paragraph 3of the Civil Code is to judge that the limitation of the legal representative’s power of representation by the law or the articles of association can oppose non-bono-faith third parties,and the guarantee contract has no effect on legal persons.From this judgment path,it can be seen that whether the counterparty is in good faith is the key element for judging whether the legal representative’s ultra vires guarantee contract is attributable to the company.However,the current law is still unclear on the standard of good faith determination of the counterparty.In this regard,it is recommended that on the basis of the "Minutes of the Nine Peoples Meeting",the counterparty should be given the obligation to reasonably review the contents of the articles of association and the guarantee resolution to judge the counterpart’s goodwill.Among them,the reasonable review standard of the counterparty is not only to review the existence of the articles of association and the guarantee resolution,but should be given to the counterparty with a simple logical reasoning obligation to balance the interests of the counterparty and the company.