On The Validity Of Legal Representative's Ultra Vires Act Of Company Guaranty

The legal representative of a company is taken for granted that he shall have the right of representative in accordance with the law or articles of association,thus he could represent the company to engage in civil affairs.In practice,the company legal representative's ultra vires act often happens,especially in the area of company guaranty.However,the legal provisions which regulate this area are scattered,thus it brings some difficulties to the judicial practice.As The General Provisions of the Civil Law comes into force,there is a new legal basis for the judgement of the effectiveness of the company legal representative's ultra vires act of company guaranty.So this article will make a comprehensive analysis of one real judicial case based on the provisions of the law and its related theories to find out solutions of solving the problems of the company legal representative's ultra vires act of company guaranty.This essay is divided into three parts: introduction,main body and conclusion.The introduction introduces the background,purpose,meaning,review,methods and innovations.The main body includes four parts:Chapter one: case put forward.At the beginning,one real judicial case of company legal representative's ultra vires act of company guaranty is introduced.Then it summarizes and concludes the reasoning of the judgment and focus of controversy,clarifying the scope of study.Chapter two: the nature of Article 16 of Company Law and legal consequences of violation of it.This chapter first introduces the classification of the mandatory provisions on management and effectiveness in theory and practice and then analyzes the nature of Article16 of Company Law,which is identified to be the mandatory provisions on effectiveness.Thus,it points out that the violation of this article does not necessarily and directly result in the invalidity of civil juristic act(contract of guaranty),the validity of which should be comprehensively recognized according to The General Provisions of the Civil Law and the related laws.Chapter three: ultra vires act and its liability.This chapter first briefly introduces company's ultra vires system,then it analyzes the constitutive requirements of ultra vires act of representative and identifies the nature of the act which follows the second biggestcontroversial focus of the case.Based on this,it continues to analyze whether it constitutes abuse of representative.Finally,it makes a introduction of the liabilities of ultra vires act of representative and burden of proof on the identification of bona fide.Chapter four: duty of review.This chapter first briefly analyzes the sources and reasons of the duty of review and points out the rationality of form examining.Thereafter,it analyzes the internal requirements of Article 16 of the Company Law on the duty of review and clarifies the relationship between the duty of review and bona fide.Finally,it analyzes the attribution of legal consequence of the ultra vires act of representative(company guaranty)and the validity of the contract of guaranty in the case.Conclusion: In this part,the author makes a brief summary of the legal representative's ultra vires act of company guaranty and its legal consequences.