The Review Obligation Of The Counterparty In The Company’s Unauthorized Guarantee

This article mainly discusses the legitimacy of the counterparty’s review obligation,the content of the counterparty’s review obligation,and the legal consequences of the counterparty’s review obligation.The first chapter demonstrates the legitimacy of the counterparty’s review obligation from the point of jurisprudence basis and legal basis.First of all,Corporate guarantees are not the company’s daily business.And corporate guarantees have the characteristics of high cost,high risk,and low return.When risk is allocated between the counterparty and the company,based on the principles of the Law and Economics,risks should be allocated to people who can manage and take risks better than others.It is difficult for the company to effectively regulate the legal representative’s highly speculative behavior by itself.The cost of the counterparty’s review obligation is more economical and feasible.In summary,from the overall profit and loss ratio,it is more appropriate for the counterparty to undertake the review obligation.Secondly,it analyzes the court’s judgments in cases of the company’s unauthorized guarantee.I’m not going to judge whether Article 16 of the Company Law is compulsory.The difference between the second and third way lies in whether the Company Law affirmed that Article 16 has external effect.In the following part,using semantic interpretation teleological interpretation systematic interpretation and legality to analyze the Article 16 should have external effect.After browsing the company law and the civil code successively.I found that applying the Company Law alone is unable to reasonably and fairly solve the problem.The adjustable range of Article 22 of the Company Law does not include the usual circumstances of the company’s unauthorized guarantee.Only applying Article 149 of the Company Law will cause substantial unfairness to the company.Therefore,some relevant provisions of Civil Code should be applied.The second chapter demonstrates the content of the counterparty’s review obligation through the standards and scope of the counterparty’s review obligation.First the law stipulates that the representative does not have the power to to sign a company guarantee contract independently.The company’s unauthorized guarantee shall apply Article 504 of the Civil Code instead of Article 61 of the Civil Code.The understanding of “knowing or ought to know” in Article 504 of the Civil Code is clarified,“should know” means that the counterparty should comply with the duty of care which stipulated in the Company Law.After distinguishing between the formal review obligation and the substantive review obligation.I denied counterparty should follow the substantive review to review the validity of the contract every time.I concluded that a reasonable review obligation should be imposed on the counterparty,and a dynamic review system should be constructed.At the same time,we should combine some other factors such as who represent the company 、 types of the company、identity of the counterparty.If the identity of the person who represent the company is a agent,director,or an executive,he should also show the document that proves his identity.If the company is a listed company,the counterparty should review more laws and regulations that related to listed company;If the counterparty is a professional financial company and should obey more cautious review obligations.I clarify the content of the counterparty’s review obligation about the company’s articles of association and company resolutions.It is necessary to check the company’s articles of association and company resolutions.The first step is to review whether the company type is a listed company,whether the decision has procedural flaws.The next step includes three main contents: The first is to review the names and signatures of shareholders or directors under the authority.Second,Whether it meets the requirements for voting rights.If the debtor is the shareholder of the company,the debtor cannot participate and vote in the meeting.Third,Whether there is a limit on the total amount of guarantees or individual guarantees in the company’s articles of association.The counterparty only should review whether the amount of guarantee in the company’s guarantee resolution exceeds the individual guarantee limit in the articles of association.Then,the issue of the authority agency in the company’s articles of association was discussed,including if the actual amount exceed the limit,the company’s articles of association do not stipulate which agency has the authority to make decisions,What are the legal consequences,what should counterparty review.The third chapter discusses the legal consequences of the counterparty’s failure to fulfill the obligation of review.Regarding the rules of attribution of contract effects,when the company’s legal representative’s ultra vires guarantee acts constitute a representative,the representative behavior is valid.On the contrary,when it does not constitute an apparent representative,the system of non-authorized agency shall be applied by analogy.Regarding the rationality of applying the non-authorized agency system by analogy,it responded to the controversy about the agency representative system in the issue of company ultra vires guarantee.From the perspective of pragmatism,the essence of legal person is studied.In the field of company external guarantee,there is no essential difference between representative and agency theory.Finally,I explained what responsibilities the company should bear after the guarantee contract is invalid.The rule of non-authorized agency does not exclude the application of the general rules of damages if the relevant requirements are met.