Analysis Of The Validity Of Ultra Vires External Guaranty Contract

The Article 16 in Company law(2005) has been clear about the company’s ability to guaranty, but expressed too general and lack of maneuverability, which can lead to the court’s drifting about the position and referee’s credibility with unauthorized guarantee disputes in foreign company. Therefore, the academic discussion hotspot focused on the effectiveness of the Article 16 in Company law(2005) attributes and unauthorized guarantee the effectiveness of the contract, and the lack of attention to the invalid responsibility and avoid excessive guarantee path on issues. In this paper,1 tried to find out the value measured and the referee disadvantages in dealing with a foreign company’s excessive security disputes by collecting and combing the judicial cases, find the external causes of the excessive guarantee problem, in order to solve the difficult problems in judicial practice.This article is mainly divided into four chapters:The first chapter mainly discusses and summary the case samples, and lists the focus of dispute of judicial judgment in our country. It includes:the directors or executive officers whether applicable when unauthorized guarantee ostensible agency or not? The security decisions of "The No authority" is effective? When the articles of association of the resolution authority did not make provisions on guaranty, how do you determine the resolution power authority?The second chapter is the introduction part, briefly expounds the research purpose and research significance of this topic, as well as research methods and scope.The third chapter is divided into two parts. The first part discusses the company’s foreign unauthorized guarantee situation by combining with the judicial referee debate focus on to find reasonable judicial referee’s position:The first,a director or the general manager in the name of the company without authorization of guaranty, there is no third person in good faith and in addition to the company after ratification, guaranty contract is invalid from the beginning; The second, the guaranty contract is effective when guarantees the resolution of the resolution authorities stipulated in the company’s articles of association and the shareholders (big) made the resolution instead of the board of directors,.The aassociated guarantees and guaranty contract is void of listed if the guarant contrant was made by the board instead of shareholders (big), and private company guarantee resolution can be revoked; Third, the listed company’s external guarantees rights own to the shareholders meeting resolution when the company’s articles of association of the guarantees without rules;if the general guarantee decision of a private company can be made by the board of directors or the shareholders’ committee, related guarantee can only be made by the shareholders’ committee. The second part analyzes the causes of unauthorized guarantee company problems:First is the lack of unauthorized guarantee legal consequences and invalid responsibility legal norms; Second is owed to the whole industrial and commercial registration system, the third person reviews the inconvenience; Third is "Company Law" and "Security Law" full of value conflicts,and the judicial referee bias; Fourth is that director responsibility system unclears in our country.The fourth chapter is to put forward the improving suggestiongs by drawing on the experience of advanced theory of Britain and the United States.One, add the legal consequence factor and invalid guarantee responsibility factor of the company law article 16; Second,improve system of the industrial and commercial registration department facilities; Third, strengthen the judicial referee oriented function; Four, clear about the responsibility of the directors system.