Study On The Ultra Vires Of Company Legal Representative

As a kind of social organization,a company legal person has independent will and corresponding capacity of conduct,but it needs a legal representative to exercise its rights on behalf of the company.The effect of the legal representative’s ultra vires is always one of the most controversial issues in the legislative,judicial and theoretical circles.Based on the analysis of the legal relationship between the legal representative and the company,this paper further analyzes the reasons for different judgments,summarizes the problems existing in the validity identification of the ultra vires representative acts,proposes the improvement of the rules for the validity identification of the ultra vires representative acts,and improves the civil liability for the ultra vires of the company’s legal representative acts.This paper carries out research from the following five parts:The first part is the basic theoretical research on the ultra vires of the company’s legal representative.First of all,the author explains the concepts of legal representative,legal representative’s duty behavior and ultra vires,and clarifies the concept of ultra vires.Secondly,it introduces the theory of personality relationship between legal representative and legal person.The second part is the basic situation of the company’s legal representative’s ultra vires.On the one hand,starting from the legislative situation,this paper introduces the evolution process of effectiveness determination of ultra vires representative acts,and arranges the existing legislative provisions.On the other hand,starting from the judicial status quo,the typical cases of ultra vires representative behavior in judicial practice are sorted out,classified and analyzed,and the practical problems are summarized.The third part is the problems existing in the rules for determining the validity of the ultra vires of the company’s legal representative.On the basis of summarizing and analyzing the previous theory,legislation and judicature,the author points out that the validity of the ultra vires action still exists.The fourth part is the perfection of the rules for determining the validity of the company’s legal representative’s ultra vires.First,insist on the same personality relationship between the legal representative and the legal person;The second is to establish a unified commercial judgment rule in the identification of the effect of the ultra vires representative act;Third,it is suggested to extend the relevant legislation and judicature of external guarantee to other commercial activities;The fourth is to set up different and embodied bona fide judgment rules,and further improve the connotation of "know" or "should know" of bona fide counterpart,namely the judgment rules of examination obligation.The fifth part is the legislative conception of the civil liability investigation of the company’s legal representative’s transgression.On the basis of empirical research,this paper discusses how to actively deal with practical problems and puts forward corresponding optimization suggestions.First,it is to improve the legal representative liability system,refine and emphasize the duty of loyalty,and improve and restructure the duty of care.The second is to correctly apply the provisions of shareholder representative action in the Company Law;Third,improve the legal representative liability insurance system;Fourth,the establishment of legal representative of the personal bankruptcy system.