A Study On The Effectiveness Determination Of The Ultraviolet Guarantee Of The Legal Representative

The issue of the validity of the legal representative’s ultra vires guarantee has always been controversial in the legislative,judicial and academic circles.Legislation has generally experienced a development trend from the belief that ultra vires acts are valid to invalid in principle,and finally to valid in principle.Due to the lack of a unified identification standard,there have been a large number of different judgments in the same case in judicial practice."Minutes of the National Courts’ Civil and Commercial Trial Work Conference"(hereinafter referred to as "Nine Civil Minutes")and "Interpretation of the Supreme People’s Court on the Application of the Guarantee System of the Civil Code of the People’s Republic of China"(hereinafter referred to as the Interpretation of the Guarantee System of the Civil Code)Focusing on responding to disputes in judicial judgments,determining the path to limit the authority of representatives,distinguishing between goodwill and malice for the effectiveness of ultra vires guarantees,and specifying the standards of goodwill,it is reasonable and feasible.,the order of application of the relevant provisions,etc.,there are still inconsistencies.Regarding the nature of Article 16 of the "Company Law",there are different views on the mandatory norm of effectiveness,the mandatory norm of management and the norm of authority.The guarantee matters are not part of the general business scope of the company and are special.When the legal representative makes a guarantee,it must be authorized by a resolution of the company such as the shareholders(general)meeting and the board of directors.Article 16 of the "Company Law" is an empowering norm,not a mandatory requirement.Violation of Article 16 of the "Company Law" will not directly lead to the invalidity of the guarantee.This article only imposes statutory restrictions on the authority of the legal representative,so it should be regarded as a norm of authority.Regarding the review obligations of the counterparty,there are differences between the substantive review obligations,the formal review obligations and the reasonable review obligations.The obligation to review the counterparty should not be a mere formality,but the counterparty should not be scolded for assuming excessive review obligations,so the review standard is reasonable review.The object of review by the counterparty is not limited to company resolutions,but also includes relevant documents such as the company’s articles of association.If the counterparty fulfills the reasonable review obligation,the guarantee is valid and the counterparty is determined to be in good faith;if the counterparty fails to fulfill the reasonable review obligation,it should be determined as the status of validity pending,which needs to be ratified by the company.Not valid for the company.That is to say,the inconsistency of Article 7 of the Interpretation of the Guarantee System of the Civil Code can be applied by analogy to the powerless agency rules,to determine the order of application of relevant provisions,and to seek internal remedies for optimization.