Research On The Relative Party’s Review Obligation In The Company’s Ultra Vires Guarantee

The company’s ultra vires guarantee means that the legal representative of the company provides guarantee for others or shareholders in the name of the company without the effective resolution of the company.Through the investigation of major judicial cases in China in recent years,it can be seen that the mainstream view of academia on the legal effect of ultra vires guarantee within the company has gone through the development process from the analysis of the attribute of legal norms to the theory of enterprise internal management,and then to the theory of ultra vires representatives.After more than ten years of disputes,the debate on the effectiveness of the company’s ultra vires guarantee came to an end after the promulgation and implementation of the minutes of the Ninth People’s Congress and the interpretation of the guarantee of the civil code.Because the interpretation path of ultra vires representative theory is more reasonable,the theory has been unanimously recognized by the academic and practical circles.However,under this interpretation path,whether the opposite party should bear the obligation of examination and the standard of examination have once again become the focus of debate.As a group legal person,the company’s ideographic mechanism has certain particularity,which is mainly reflected in the separation between the company’s intention formation organ and the expression organ.In the corporate governance structure,the legal representative is the executive organ of the company’s decision-making,that is,the expression organ of the company’s will.Therefore,when there is a violent conflict between the institutional attribute of the legal representative and its natural person attribute,the interests of the company are put in danger.In view of this,through the clear provisions of the law on the review obligation of the opposite party,the authorized source of the legal representative is taken as the content of the review obligation of the opposite party,so as to ensure the consistency of the company’s decision-making intention and expression behavior through external constraints,so as to offset the legal risk caused by the separation of the company’s inner intention and expression behavior.On the basis of clarifying the obligation of review of the opposite party,the academic circle has not discussed much about the standard of the obligation of review of the opposite party,but the dispute between the formal review standard and the substantive review standard has existed since the beginning of the problem of ultra vires guarantee of the company.Although the formal examination standard stipulated in the minutes of the nine people has the important practical significance of fixing points and stopping disputes,with the in-depth development of the market economy,some transitional problems have been exposed,which are mainly reflected in that the formal examination standard is too low,which leads to the non existence of the examination obligation of the counterpart,but has become a legal means for the counterpart of secured transactions to avoid the guarantee risk.For this reason,the guarantee interpretation of the civil code revised the standard of the obligation of examination of the opposite party from the "formal" examination standard to the "reasonable" examination standard.According to the existing legal provisions,"reasonable" should be understood as "know or should know".Specifically,it refers to the general duty of care of the opposite party.Compared with the formal examination standard,the reasonable examination standard is based on the dynamic system theory and the principle of distinguishing elements by types,so it is more flexible and more applicable.In short,for the standard of the Examination Obligation of the opposite party,a reasonable examination standard should be adopted.On this basis,the court should distinguish between the type of company,the type of guarantee and the identity of the opposite party,and set up the content of dynamic opposite party review obligation.In the process of ultra vires guarantee of the company,as long as the opposite party has fulfilled the obligation of reasonable examination,it is a bona fide opposite party,and the guarantee contract is effective;Otherwise,the guarantee contract is invalid.On the premise that the guarantee contract is invalid,the company is no longer a party to the contractual relationship,so of course,it does not have to bear the guarantee liability.However,whether the company should bear other civil liabilities should be judged according to the provisions on unauthorized agency in article 171 of the civil code.On the one hand,from the perspective of comparative law,the common practice of the United States,Britain,Japan and Taiwan in China is to identify the act of ultra vires of the company as an act of ultra vires,and directly apply the unauthorized agency rules in the civil law.On the other hand,although the nature of representative and agent is different,their functions are similar,and there are more differences in theoretical explanations.Therefore,in the absence of specific norms on the civil liability of the company’s ultra vires guarantee in China’s law,the unauthorized agency rule should be applied by analogy to completely separate the company from the guarantee relationship and avoid the imbalance of the company’s interests caused by the ultra vires of the legal representative.In other words,in the company’s ultra vires guarantee transaction,when the compensation to the opposite party is involved due to the invalidity of the guarantee contract,the provisions on unauthorized agency in article 171 of the civil code should be applied by analogy,and the opposite party and the legal representative should bear their responsibilities respectively according to their own degree of fault.