A Study On The Validity Of The Ultra Vires Guarantee Of The Legal Representative Of The Company

In terms of selection criteria,review obligation criteria and the effectiveness of private law,there are still disputes over the determination of the effectiveness of the company’s legal representative of ultra vires guarantee.The normative identification theory deviates from the normative intent of Article 16 of the "Company Law",the internal management norm theory is overly inclined to the protection of interests,and the defense theory is suspected of absolutizing appearanceism,which is not suitable for determining the effectiveness of ultra vires guarantee.The starting point of the theory of limitation of representation is relatively close to the legislative purpose of Article 16,but the internal division is obvious,and a unified understanding cannot be formed.Justice path varies,the focus of controversy finds significant differences,leading to have occurred "co-kind case different adjudgment" phenomenon.Although the introduction of the "Summary of jiumin" has provided more unified guidance,the problems of unclear standards of review obligations,lack of rules when the offeree are malicious and other issues cannot be ignored.The link between Article 16 of the “Company Law” and the norms for the attribution of the effectiveness of the ultra vires representative is the core link in the determination of the effectiveness of the ultra vires guarantee of the legal representative of the company.The refinement of the limitation on the representative power and the review obligation standard will help promote the uniformity and precision of judicial judgments.The theory of limitation of representation is the theoretical prerequisite for determining the effectiveness of ultra vires guarantee.Article 16 of the "Company Law" intends to establish a procedure for controlling the company’s guarantee resolution to achieve the purpose of protecting the interests of the company and shareholders.Based on the publicity of the content of legal norms,Article 16,paragraphs 1 and 2 all constitute statutory restrictions on the legal representative’s representation.In addition,our country should take the effectiveness of the company’s internal and external legal relationships as the overall framework,the distinction between authorized matters as the pre-standard,and the source of limitation as the main standard to determine the effect of the limitation of representation on the effectiveness of the company’s legal representative’s ultra vires guarantee.Regarding the application of norms,Article 504 of the Civil Code is a specific rule and has prior applicability;it also contains rules for determining the validity of ultra vires representative acts under contract and legal restrictions.The offeree’s review obligation is the logical node of effectiveness judgment.Establishing a standard system of offeree’s review obligations based on the principles of internal and external distinctions,the relaxation of commercial appearanceism and comprehensive measure of interests;making the offeree review company resolutions and other related documents in the formal standard;and considering the basic elements such as the type of offeree,the association with the guarantee company and information acquisition channels are to embody and refine the review obligations of the offeree,and promote the precision of judicial judgments."Effectiveness" and "effectiveness to be determined" are two aspects of the effectiveness of the legal representative’s ultra vires guarantee.If it proves that the review obligation has been fulfilled,the ultra vires guarantee is effective for the company,and the company assumes the guarantee responsibility;and when the offeree is "malicious",the possibility of applying an unauthorised agency by analogy is that both "representation" and "agent" are essentially belonging to the norms of attribution of behavioral effects and is the link between the behavioral effects of the agent(representative)and the person(legal person).The effectiveness of an ultra vires guarantee with a pending effect in the case of “malicious” depends on whether the company ratifies or not.The ratification can make up for the lack of representation,resulting in the effectiveness of the ultra vires guarantee for the company;on the contrary,the ultra vires guarantee does not bind the company,the offeree may request the legal representative to perform the contract or compensate.