Research On The Effectiveness Of Company's Ultra Vires Guarantee

As for company's ultra vires guarantee,the academic and practice circles have not reached consensus on no matter the effectiveness of company's ultra vires guarantee or the other party shall undertake the obligation to review the company's rules of guarantee and resolution of the guarantee.Judicial referee has not yet formed a relatively feasible path of the referee.As a result,this article chooses the judicial cases as the research starting point,use balance the interests of the company,the shareholders of a company and the other party between as the value guidance,hope to offer a relative explanation route for the effectiveness of company's ultra vires guarantee.Apart from the introduction and conclusion,this article includes four parts,the full text of a total of about 42000 words.In the first part,i make an exposition of the current situation and existing problems of judicial adjudication on the effectiveness of company's ultra vires guarantee.As for company's guarantee,the company's law in 2005 have made a huge progress compared to it in 1993,however,the judgments of the effectiveness of company's ultra vires guarantee remained a problem in judicial circles.Only the cases of ultra vires guarantee which in violation of the Article 16 of the company law in 2005,the referee based on the main can be summarized into three kinds:(1)according to the nature of legal provision of Article16;(2)internal behavior and external behavior differentiation theor;(3)according to the legal representative's limit theory of representation.Different referee basis leads to the "the same case of different judgments",in the judicial practice,the effectiveness of company's ultra vires guarantee include valid,invalid,ineffective and unsuccessful results.whether the other party has the obligation to review the stipulation of the company's guarantee and the guarantee agreement,to a certain degree,effect the judgment of the court.However,whether the relative person has a duty of review,judicial practice in different views,that the relative does not have the obligation to review,with substantive review obligations,bear the form of review obligations are accounted for a considerable proportion of these views is undoubtedly directly affecting the standardization of the operation of the company guarantee and not conducive to establish the judicial authority,urgent need to regulate the relevant legal provisions to be standardized.In the second part,i make an exposition and comment of the different types of referee basis in the judicial judgments.As for the referee basis of according to the nature of legalprovision of Article 16,from my view,i think that it deviates from the legislative purposes of Article 16;According to the theory of internal and external behavior,,although it bring about transaction efficiency and judicial convenience,it ignores the interests of the company and the shareholders of the company;As for the referee basis of legal representative's limit theory of representation,it faces an embarrassment that the Article 50 of the Contract Law have not stated the effectiveness when the other party “know or should know”the legal representative is beyond the authority.In my view,we could use in combination of the referee basis of the second type and the third type.The Article 16 of the Company's Law is a limitation to legal representation,if the legal representative of the company have violated the article,we could judge the effectiveness of the contract according to the other party's subjective attitude.we could use the theory of the internal behavior and external behavior when we affirm the other party's subjective attitude.The other party should undertake the obligation of review only when the stipulations is discoverable.When the other party did not review as a result of gross negligence or know the legal representative exceeded his power after reviewing,the other party still sign the contract,only in that case,we can deny the "bona fide" of the other party.In the third part,i expounds and analyzes the legitimacy of the reviewers' obligations and the scope of the review,The legitimacy includes the following two aspects:(1)in company's guarantee,the formation of meaning and the expression of meaning are separated based on the rule of law,in the interests of the assets of a company and the shareholders of a company,the Company Law make special stipulations of the company's formation of meaning in the field of company's guarantee,which grants a special meaning to the company's formation of meaning.The other party should know the stipulation;(2)Law and the company's articles of association,resolution shall limit the representation of it's legal representative in some time,in the case of limitation from the law,the other party shall undertake obligation of review the representation of representative,whether in the case of limitation from the company's articles of association and resolution,the other party have no obligation to review.Of course,the review should to the limit of formation review.In the fourth part,i make an analysis of the effectiveness of guarantee resolution and guarantee agreement:(1)summary and analyze the four types guarantee resolutions and its effectiveness which in violation of the articles of association;(2)the effectiveness of the resolution is related to the determination of the "goodwill" of the other party,but not equal.we should not rule the effectiveness of the guarantee solely based on theeffectiveness of the resolution,in the situation of the other party have exercised the obligation of review,we should cut off the retrospective effect of invalid or revocable resolution,to affirm the effectiveness of the guarantee agreement;(3)the guarantees provided by the legal representatives in violation of the provisions of Article 16 belongs to ultra vires guarantee,which should apply to the Article 50 of the Contract Law,however,the Article 50 of the Contract Law have not stated the effectiveness when the other party“know or should know”the legal representative exceed his power.Based on and similarity between ultra vires representative and non-authorized agent,we can refer to the provisions of the Contract Llaw about the non-authorized agent,when the other party knows or should know the legal representative beyond his power,the representative behavior is pending validity;(4)To summarize the above-mentioned content,to affirm the effectiveness of the guarantee agreement on the basis of the distinction of the other party's subjective attitude.In the case where the guarantee resolution is revocable or invalid,the validity of the guarantee contract shall be determined,and if the other party is in good faith,if the other party is in good faith,the ultra vires act shall be vested in the company,and if there is no other defect in the guarantee contract,the contract is valid,if the other party is not in good faith,then the ultra vires act is attributable to the the company is to be determined,if the company to pursue,the ultra vires act attribute to the company,if the guarantee contract does not exist other defects in the case,the guarantee contract is valid.If the type of guarantee provided by the legal representative is a mortgage or pledge guarantee,the legal representative does not have the ownership of the company's assets,so the guarantee contract can not be invalidated because of the purpose of the contract.The other party can only request the legal representative to bear the liability,can not require its commitment to fulfill the responsibility,if the type of guarantee provided by the the legal representative is guarenteed guarantee,the othe party can request the legal representative to become a party to the contract,and bear the corresponding guarantee responsibility.Of course,the guarantee responsibility here may be the responsibility for the performance of the debt,or when the debt can not be done on behalf of the liability.