Research On The Ultra Vires Surety By Corporate Representative

The company’s external guarantee microscopically enhances debt credit and promotes capital financing;macroscopically improves transaction efficiency and helps economic development.Therefore,the proper handling of the judicial application of the company’s external guarantee is the key to break the transaction barrier.China’s provisions on corporate guarantees began in 1993 with the Company Law’s restrictions on the ability of directors and managers to provide external guarantees,and in 2005 with the Company Law’s initial clarification of corporate resolutions as a necessary prerequisite for the signing of guarantee contracts,in order to maintain the safety of corporate property and the interests of shareholders with procedural justice.The company resolution is the true meaning of the company,the legal representative in the absence of resolution,resolution defects,resolution is not established on behalf of the company to sign a guarantee contract with a third party constitutes ultra vires external guarantee.This issue involves the value measurement of different interest subjects,related to the realization of the legislative purpose of the complex legal sector,and ultimately focused on the judge’s decision on the choice of ideas.The identification of the nature of norms and the distinction between internal and external relations represent the two extremes of the judgment in practice,namely,the single protection of the interests of the company or the excessive protection of the interests of the opposite party,which undermines the predictability and stability of the judgment.In order to rectify this disadvantage,the Ninth Civil Code initially establishes the idea of statutory limitation of authority: Article 16 of the Company Law cannot directly determine the validity of the guarantee contract,but is actually a statutory limitation of the authority of the legal representative of the company,which leads to Article 504 of the Civil Code embedding the flexible factor of whether the relator is in good faith.The company is bound by the guarantee contract if the counterparty has fulfilled the obligation of formal examination in good faith;if the counterparty is not in good faith,the relevant rules of narrowly defined powerless agency shall apply,and the contract shall not be effective for the company if the company does not recognize it retroactively,and the legal representative shall share the loss with the counterparty according to the principle of"with negligence’’.In order to unify the legal application of judgment standards,there is still a need for in-depth research.First,this paper analyzes the historical evolution of China’s corporate guarantee rules and the meaning of the key provisions.2005 Company Law recognizes the company’s right to guarantee capacity,while limiting the resolution of the company’s guarantee subjects and procedures;on the basis of the appropriateness of the idea of limiting the legal authority of the Nine Civil Minutes,the Judicial Interpretation of the Civil Code on the guarantee system refines the standard of the good faith of the relator and limits the exception of the company’s resolution.The situation,the configuration of responsibility still has room for improvement.Therefore,Article 16 of the Company Law is intended to protect the interests of the company and shareholders on the one hand,and direct the obligation of third party review to the articles of incorporation on the other hand;Article 504 of the Civil Code plays a leading role,and "knows or should know" relates to the judgment of the good faith of the relator,which is in essence the attribution of the validity of the act of the legal representative.The rules.Secondly,this paper reflects on the trial thinking of the division of paths in practice.The deficiencies of the trial idea of distinguishing Article 16 of the Company Law as "effective norms" or "regulatory norms" to determine the validity of the contract are highlighted.On the one hand,the "dichotomy" is confusing,tautological and illconceived;on the other hand,"security resolution" and "security contract" belong to different starting points of legal interpretation and have different values.On the other hand,"guarantee resolution" and "guarantee contract" belong to different starting points of legal interpretation and different values,but if we go to the other extreme that they belong to internal and external legal relations and their effectiveness does not affect each other,it has the essence of the relationship between the offender and the legal representative,and confuses the difference between the agreed limit and the statutory limit,which is not enough to be adopted.Accordingly,in order to clarify the judicial application of the company’s legal representative’s ultra vires guarantee,correct the deviation of the adjudication position,and find the proper adjudication path,this paper follows the interpretation method of legal benefit measurement,focuses on the legitimacy and necessity of the idea of legal authority limitation,constructs the systematic framework of the goodwill of the counterparty,and refines and differentiates the types,and discusses the validity of the guarantee contract and the responsibility of the counterparty under the non-goodwill In order to benefit the practice.