Research On The Validity Of The Legal Representative Of The Ultra Vires

legal representative is an important part of corporate power system.In recent years,it is common that the legal representative grants the guaranty to others in the name of the company without the consent of the board meeting of directors or shareholder meeting.The validity of the ultra vires of legal representative has become an important issue. Because of this issue involve in transaction security and company's interests,and there are few specific law rules for representation,the scholars and the judges hold different views regarding on this issue.As a result, in judicial practice, the emergence of different ruling in a similar case.This paper is intended to re-effectiveness of the legal representative of the ultra vires disputes and in order to clarify this issue. The paper is divided into four parts, the main contents are as follows:The first chapter is to analyze and classify the typical cases about representative of the ultra vires.There are three types which is valid, invalid and pending validity. Then summarizes the four main points of dispute: first, the relative who "knew or should have known" of the legal representative of ultra vires, its effectiveness should be invalid or pending;,Second.,the nature of the company law can be directly determined the effectiveness of the contracts or not.Third, the effectiveness of the company's policy should be what.Finally,how to determine the relatives who is "goodwill."The second chapter is discuss the basic theory of power of representation.This section introduces the source of legal representative of the right,.I think it is the board authorized its business to legal representative.Secondly,there are law /company policy or internal resolution restriction about the legal representative of the right.Then clarified the difference between legal representative of the ultra vires and representation abuse. Finally it clear that the essence of legal representative of the ultra vires is to solute the validity of behavior of ultra vires and the validity of the correct.The third chapter is focused on the validity of the corporate representative's act in ultra vires. The validity was composed of the validity of representative's act and the validity of contract.First,the scholars and the judges was focused on whether the third party is a bona fide third party when discuss the validity of the representative's act.Though it protect transaction security,it maybe injurious to the company's interest.In this situation,this paper hold based on the standard of typed representative act and identification of validity of the representative act so that balance transaction security and the interests of the company.The validity of contract could to be divided two classes:the validity of the organizational contract shall be apply in company law, rather than contract law. In this situation,the contract is invalid(whether the third party is a bona fide or not)unless the company ratify it.The validity of the trading contract shall be apply in contract law.In this situation,the contract is valid with a bona fide third part and the corporate ratified the ultra vires with a malicious third party. If the corporate does not ratify the ultra vires when the third party is malicious,the act and contract shall be null and void.In addition, the subjective state of third party directly effect on the validity of ultra vires. Registered constitution which is restricted regulations on representative rights have the legal effectiveness against third party.The effectiveness against third party of filed constitution depends on whether the third party is a merchant commercial person. The third party have the obligation to examine the representation of the legal representative.The fourth chapter is aimed at the distribution of legal liabilities when the corporate representative's act in ultra vires is void.When the representative's is trading act and ultra vires is void,.in this situation, the malicious third party is entitled to sue corporate representative against ultra vires liability or tort liability,and not entitled to sue the corporate against ultra vires liability or tort liability,but contributory negligence shall be considered in determining the scope of indemnification. When the representative's sis organizational act and ultra vires is void,a bona fide third party could require the corporate to compensation and the malicious third party is entitled to sue corporate representative against ultra vires liability or tort liability.