A Study On The Effect Of The Company’s Legal Representative’s Unauthorized Guarantee

The company’s external guarantee is a common credit enhancement measure in market transactions,which can promote the circulation of funds and alleviate the financing difficulties of SMEs.However,after all,external guarantees involve multiple stakeholders.The legal representative,as the representative of the company’s will,will have a negative impact on the company and shareholders’ rights and interests if it’s out of control.Article 16 of the"Company Law" is a provision specifically regulating corporate guarantees.Because it is too and lacks the legal consequences of violating this provision,there are many disputes in the theoretical and judicial practice circles about the validity of the legal representative’s ultra vires guarantee.The introduction of "Minutes of the National Court’s Civil and Commercial Trial Work Conference"(hereinafter referred to as "Minutes of the Nine People")abandons the simple dichotomy of administrative norms and effectiveness norms,and takes the goodwill of the counterparty as the key element to determine the effectiveness of the ultra vires guarantee.The interpretation of the Supreme People’s Court on the application of the relevant guarantee system(hereinafter referred to as the interpretation of the guarantee system)has absorbed and improved the relevant content of the "Minutes of the Nine People" made the rules for determining the effectiveness of ultra vires guarantees more clear,and realized the evolution from effectiveness judgment to effect attribution.The "Minutes of the Nine People"and the "Interpretation of the Guarantee System" have great guiding significance for the determination of the effectiveness of ultra vires guarantees,but they have not eliminated the phenomenon that the effectiveness of ultra vires guarantees is discussed in the nature of norms in judicial practice.Even if most courts gradually adopt the path of statutory limitation of authority,there are still disputes about the effect of private law on the good faith judgment of the counterpart and the malice of the counterpart.This article takes the judicial judgment case of the legal representative’s ultra vires guarantee after the promulgation of the "Civil Code" as the starting point,leads to different judgment ideas of courts on the issue of ultra vires guarantee in practice,and analyzes the reasons for the differences in judgment.Subsequently,the problems existing in the determination of the effectiveness of the legal representative’s ultra vires guarantee are analyzed and discussed in detail,including the different paths of the determination of the effectiveness of the ultra vires guarantee,the unclear criteria for the determination of goodwill,the attribution of the effect of ultra vires guarantee and the assumption of responsibility are not clear when the counterpart is malicious.Finally,in view of the above problems,this paper puts forward some suggestions for improvement.Firstly,we should adopt the path of legal authority limitation to determine the effectiveness of ultra vires guarantee,connect Article 16 of"Company Law" to the apparent representative clause of "Civil Code" to solve it,and judge the effect attribution of ultra vires guarantee contract according to whether the counterpart is in good faith.Secondly,after determining the path of validity determination,the standard of good faith is clarified.The object of review of the counterpart should include the company’s articles of association in addition to the company’s guarantee resolution,and the standard of review of the counterpart is reasonable review;Thirdly,the attribution of the effect of the ultra vires guarantee when the counterparty is malicious should be the validity to be determined,depending on whether the company ratification determines whether the ultra vires guarantee contract has effect on the company;Finally,when the ultra vires guarantee contract does not take effect for the company,the company’s liability should be excluded,and the legal representative and the counterpart should bear the liability for compensation according to their fault.