Research On The Issue Of The Company’s Unauthorizted Guarantee

The external guarantee of the company means that the company provides guarantee for the debts of others,which has become a common way for the company to obtain financing.However,as a special civil subject,the company’s intention formation and intention expression are separated,so the phenomenon of company unauthorized guarantee frequently occurs.Article 16 of the "Company Law",as the norm for the regulation of the company’s guarantee matters,is an incomplete law article and does not stipulate the legal consequences.The issue of the determination of the legal effect of the company’s unauthorized guarantee has caused widespread controversy.There are valid,invalid and undetermined theories about the validity of the company’s unauthorized guarantee in the theoretical circle.In the practice circle,there are also the path of judging the legal effect of the company’s unauthorized guarantee,the path of judging the normative attribute,the path of judging the internal management norm,and the path of restricting the rights of the legal representative.It is precisely because of the existence of the above-mentioned disputes that the contents of Articles 17 to 22 of the "Minutes of the Nine Peoples" unify the judgment path.The "Guarantee Interpretation of the Civil Code",after absorbing the contents of the "Minutes of the Nine Peoples",has improved the contents of Articles 7 to 11,and has formed a unified point of view.The essence of the article is to limit the representation of the legal representative,and it cannot be directly used to judge the legal effect of an unauthorized guarantee.It is believed that a violation of this clause constitutes an ultra vires representative,so it is directed to Article 504 of the Civil Code to refer to the representative system to judge ultra vires.The legal effect of the guarantee.It also perfected the determination of the good faith of the counterparty,and determined the standard for the counterparty to undertake a reasonable review.However,there are still imperfections in the Minutes of the Nine Peoples and the Interpretation of Guarantee of the Civil Code when determining the legal effect of the company’s unauthorized guarantee.First,the standard of relative goodwill is not clear.In this regard,it is necessary to clarify the object of review by the counterparty,include the articles of association as the object of review,clarify the standards for reasonable review by the counterparty,and analyze the factors that affect the "reasonable" standard;second,whether the counterparty can be applied by analogy when it is malicious has no right.proxy rules.In this regard,based on the identity of the nature of agency and representative,it should be clear that when the counterparty is malicious,the rules of unauthorized agency can be applied by analogy,and the effect of ultra vires behavior can be judged;The decision-making power of the guarantee is unclear.In this regard,it should be clarified that both the shareholders meeting and the board of directors can serve as the company’s decision-making bodies.