Refereepathresearchon The Validity Of The The Company Guaranteecontract With Ultra Vires Act

Although the article16 ofCompany Law of the People's Republic of China(“Company Law”)is the the relevant regulations about the behavior of company's guaranty for the others,the phenomenon of the company violating of the article is still emerge in an endless stream.How is the validity of the contract of guarantee when the company provide guarantee with ultra vires? Academic and judicial circles on this issue has not yet reached consensus.The relevant judicial case of 2015 and 2016 show thateach court adopts differentpath in the cognizance of the problem,and even on the same referee path,each court has different view about the relevant legal problems.Both the paths still exist serious deviations.This paper aims at this such as partial lose in detail argumentation,and tries to show a sound solution on the validity of the contract of guarantee when the company provide guarantee with ultra vires.This paper consists of four parts:The first part:there are three waysthe courts adopt tojudge the validity of the guarantee contractaccording to the related cases in recent two years.One is according to the item fifth of Article 52 ndof the ContractLaw and the normative of thearticle16 ofCompany Law;The second is that company internal draft is not restraint on the creditor and the creditor doesn't have the examining duty about the draft.The third way is that the creditor should know that the guarantee draft must fit the articles of association of the company and would be passed bythe shareholdersaccording to the legal theory andthepurpose of thearticle16 ofCompany Law.The creditor is bound for Positivereviewobligationsof the guarantee draft.The second part: this part is about the existing deviationof referee paths in detail.First of all,the courts who adopt the first path not only confuses the adjustment object of thearticle16 ofCompany Law,namely the provisions for non external legal regulation of the company but in the internal legal relationship adjustment,the provisions can not be directly identified as the effectiveness of the trading behavior between the company and the third person;Besides,according to the results,such judgments condone malicious creditor getting secured rights.Secondly,the court finds that the company inner draft is not binding on the creditors,ignoring the existing system of special provisions to the company's guarantee behavior,which is seriouslypartial to the debt people ignoring the interests of the company and shareholders.In addition,the legal representative of ultra vires guarantee,the majority of the court presume the creditor is unsuspecting about the ultra vires act when judging the creditor "knows or should know".The third part:this partis the demonstration on the creditor examing duty in detail,and it is about the correction and improvement of the existing deviationof the second path.This part is to prove the creditor examing duty according to the company's external guarantee system of legislative purpose,legal theory and feasibility of infer relative obligation.What'smore,the object of review of obligations and standards are clearly defined so as to better guide the creditor to fulfill the obligation to review.The fourth part: this part is about detailed presentation for the different ultra vires situations,and expounds the measures for the judgement of the validity of the guarantee contract.On the macro level,the company's external guarantee includes two cases: one is the right decision organ makes decision ignoring of the article16 ofCompany Law,which leads to the resolution processvoidable in violation of the law;the other is the legal representative of the company actsin the external guaranty without the granted permissions.The author believes that whetherthe defective resolution of the guaranty contract is with the retroactivity effect should be based onthe secured creditorsperformingthe review duty or not.The guarantee contract shall be judgedvalid but not Undeterminedeffectaccording to theviewofinterestmeasurementwhen the creditor is informed of the ultra vires act.