Study On The Legal Application Of "Fake Official Seal"

For a long time,disputes arising from the real or fake official seal,especially civil disputes over the validity of contracts,have been common.There is a trend that the number of related cases is increasing year by year.There is no consensus in the jurisprudence on the intrinsic relationship between the authenticity of the official seal and the validity of the contract,and the current law does not give a direct basis for adjudication of the issue.Article 41 of the Minutes of the National Conference on Civil and Commercial Judgment(hereinafter referred to as the Minutes of the Ninth Civil Conference)made a special interpretation of the issue of the official seal,clarified the legal effect of the act of stamping,and proposed the adjudication rule of "looking at the person but not the seal",that is,whether the contract has legal effect on the subject of the official seal mainly depends on whether the legal representative or Whether the agent has authorization,but not to see whether the seal is legal engraved and registered for the record.Looking at the complex legal issues of the official seal disputes,the vast majority of the parties’ defenses and claims revolve around a core issue-the contract stamped with the official seal is the real official seal or false official seal.The validity of the seal should be judged by the validity of the authorization to replace the "true or false" judgment.The validity of the official seal comes from the authorization of the company rather than the registration and filing.Jiumin Minutes" established the "look at the person not the chapter" rule has its reasonableness,but the rule is too general,it is difficult to apply to the ever-changing cases,can not effectively solve all the problems of the official seal.And,the rule will lead to the role of the official seal is dissolved,the official seal management system lost the meaning of existence.The rule of "look at the person but not the seal" should be interpreted in a moderate way,and the rule of "look at the person first,and then look at the seal when necessary" should be adopted.The official seal should still play an important role in commercial transactions.Under the rule of "look at the person first,and then look at the seal when necessary",the counterparty to the transaction has a duty of reasonable care to the official seal.According to the classification of whether the subject of the contract signed with the counterparty using the "fake official seal" is a legal agent,an employee of the company or an outsider of the company,the counterparty should apply different degrees of duty of care.