Study On The Effect Of Legal Representatives' Overstepping The Effect Of External Guarantees

The legal representative's over-authorization of external guarantee cases is numerous in practice,and the debates on the issue between the theoretical and practical circles can be said to be protracted.The theoretical circle mainly argues about the effectiveness of the ultra over-authority guarantees and the determination of the relatives' goodwill.In practical judgments,the validity of the legal representative's over-authority guarantee is often made differently.Even if the same referee conclusion is obtained,the reasons are different,which is not conducive to maintaining the unity and authority of the judiciary.One of the important reasons for the controversy is that Article 16 of the Company Law of 2005 does not stipulate the elements of legal consequences,which belongs to incomplete law.Therefore,it is necessary to resort to other laws to determine the legal effect of the legal representative's unauthorized external guarantee.This paper takes the issue of the validity of the legal representative's over-authority guarantee as the research object,and from the perspective of practice,extends the theoretical thinking,and then draws its own point of view,and discusses it.In the introduction,it mainly expounds the purpose and significance of writing,the status of domestic research and the innovation of this paper.In addition to the introduction and conclusion,the text of this paper is divided into the following four parts:The first part is about the practical differences of the legal representative's over-authorization of external guarantee.Because the issue of the legal representative's over-authorization of external guarantee is of strong practicality,this paper first draws out differences in the way of cases,and summarizes the main points of the court's trial,then summarizes the focus of the dispute,and finally analyzes the causes of the differences,including the incompleteness of the law itself and the conflicts of interests between different departmental laws.The second part is the analysis of the nature of the legal representative's over-authorization of external guarantee.Firstly it introduces the controversy about the normative nature of Article 16,paragraph 1,of the Company Law.With the help of Eisenberg's "three-point method" legal norms,which is widely adopted by China's legal scholars,and concludes that the disputed clause is empowering norm from the perspective of definition of normative concepts and interpretation of literary meanings.The articles of association are actually the implementation of the law.If the legal representative violates the provisions of this article.In essence,it violates the statutory restrictions.The third part is the confirmation of the validity of the legal representation of the legal representative.Through the analysis of the second part,it can be seen that the legal representative's over-authorization of external guarantees is a violation of statutory restrictions.Article 61,paragraph 3,of the General Principles of Civil Law of the People's Republic of China(hereinafter referred to as the General Principles of Civil Law)adopted in 2017 only applies to the contractual restriction of the right of representation.Therefore,this article takes the "Contract Law of the People's Republic of China"(hereinafter referred to as the "Contract Law")and the "Interpretation of the Supreme People's Court on the Application of the <Guarantee Law of the People's Republic of China>"(hereinafter referred to as "Interpretation of Guarantee Law " as the basis of determining the validity of the legal representative's external guarantee,and is determined to be valid or to be valid according to the subjective state of the relative person,in which the judgement of the relative person's "goodwill" is emphatically analyzed.The fourth part is the responsibility of the legal representative to surpass the external guarantee.The validity of the determination is the premise,and the final responsibility is the attribution.This chapter first introduces the current regulations on the legal representation of foreign legal guarantees in the country,including the "Company Law","General Principles of Civil Law" and "Interpretation of Guarantee Law".Then,it evaluates the existing problems of the above provisions.Finally,it puts forward personal suggestions on the legal representative's overstepping foreign security responsibility,and reasonably determines the owner of the responsibility according to the conclusion of different validity.As a legal representative,the company can make it clear,that the "victim" of the act of overstepping his power can make recourse.