Research On The "Good Faith" Of Counterparties When A Company Provides Guarantee With Ultra Vires

With respect to the problem that a company provides guarantee with ultra vires,the Supreme People's Court once pronounced two opposite verdicts.Nonetheless after the quantitative analysis of judicial judgement,we found that the guarantor's rights was neglected inappropriately.The traditional academic circles and judicial practices were prone to protect the creditor of guarantee,especially without considering the situation whether the trading counterparty is good faith or not and a large amount of judicial judgements choose to protect the interests of trading counterparty.In order to avoid the abuse of the principle of commercial appearance,the creditor of guarantee shall assume the duty of formal review and the content of which shall include the articles of association and the resolutions of company.Besides,as for the burden of proof,if the creditor of guarantee violates the lawful restriction of the article 16 of Corporation Law,he shall assume the burden of proof to prove whether he is good faith or not.Only through this way can we fix the problem that the protection of creditor of guarantee is too excessive.We also need to revalue the relationship between the commercial trading efficiency and the commercial trading fairness.