An Analysis Of The Effectiveness Of Guarantee Signed By Executive Partner In Ultra Vires

The Partnership Law makes a limit that providing guarantee for others in the name of the partnership must be agreed by all the partners.However,in reality,the executive partner often ignores the foregoing.Judges hold different views of the validity of the contract signed in that circumstance.Scholars also stick their own stands.On the basis of summarizing the differences of cases,this paper compares the research about the validity of guarantee contract signed by corporate legal representative beyond authority,and intends to analyzes and discusses a series of disputes.Including the rational judging path to validity of the guarantee contract signed by executive partner beyond authority,the third party's goodwill and the state of the liability due to invalidation.In addition to the introduction and conclusion,this paper is divided into five parts:The first part gives a brief introduction of the case to be discussed and sums up the differences in judicial practice.By combing the existing judgments,this paper summarizes the four differences in judicial practice on the issue of the executive partner providing security in the name of the partnership enterprise without authorization,and points out that the difference in the judging path to validity of the guarantee contract is the key among them.The second part evaluates the existing judging path to validity of the guarantee contract in judicial practice and try to explore the causes of divergence.In this part,the author analyzes the four typical ways of confirming the validity of the judgments one by one,and concludes two kinds of factors that influence the Judicial practice on the validity of providing guarantee by the executive partner in extra vires.They are “the dual nature of the legal facts provides the multiple refereeing directions” and “The position of value determines the choice of the referee”.The third part constructs the reasonable judging path to validity of the guarantee contract,according to the reason of the difference.Firstly,seeking the theoretical basis of the distinction between representative and agency,characterizing the relationship between the executive partner and the partnership enterprise as agency.Secondly,coordinating the relationship between value measurement and logical reasoning,clearing the purpose and function of relevant norms and pointing out that the effectiveness of the contract is ultimately influenced by whether the third party has goodwill.The fourth part analyzes the standards and effects of the goodwill of the third party.By summarizing the judgment standard of the third party's subjective state “negative concept theory” in the delegation of authority,the question of whether the third party has the obligation of paying attention to the authority of the executive partners is raised.Drawing on the scholars' theory of whether the third party has the duty of care under the circumstance of the legal representative's ultra vires guarantee,this part tries to state the reasons for affirming the attention of the third party.The fifth part analyzes the state of responsibility when the guarantee contract is valid and invalid.This part is classified according to the reasons why the guarantee contract provided by the executive partner in ultra vires is valid or invalid,and respectively discusses the validity of the guarantee contract because of the apparent agency.Discussing the guarantee contract when it is valid because of the ratification of the partnership,when it is invalid because of the violation of the law in the narrow sense and when the partnership refuses to ratify it.