Analysis On The Effectiveness Of The Company's Overstepping Guarantee

The problem of how to determine the validity of corporation's overreach guarantee behavior has long been controversial in judicial practice and theoretical circle.The main controversy is that: whether the violation of article 16 of the company law has the effect of invalidating the guarantee contract signed with the counterpart.According to the dispute,the dispute about the validity of the company's overreaching guarantee behavior mainly stems from the different understanding of article 16 of the company law by scholars and judges: some people hold that the violation of article 16 of the company law does not belong to the invalidation of the contract stipulated in the contract law;some people hold that article 16 of the company law is only an internal procedural standard for the guarantee of a company and should not be binding on the contract signed between the company and a third party;some people hold that whether the guarantee contract should be effective depends on whether the relative party signing the guarantee contract is in good faith,and only when the relative party is in good faith,the effectiveness of the guarantee contract should belong to the company.The different understanding of the application of article 16 of the company law leads to the judicial chaos of different judgments of the same case and different theories of the same judgment in judicial practice,and forms three main judgment paths based on the above viewpoints.This paper argues that the company law is not only a private law,but also has the nature of organizational law,in the application of article 16 of the company law,how to better maintain the stability,safety and efficiency of commercial transactions should be considered.Under the background of the integration of civil and commercial affairs,it is impossible to realize the legislative purpose and trend of commercial rules in the company law only based on the nature or effect of article 16 of the company law.It is more consistent with the legislative purpose and the latest legislative spirit of the relevant system of contract law to determine the effectiveness of the company's overreach guarantee through the way of protecting bona fide counterparts.In this way,the general provisions of civil law put forward the latest legislative guidance for the protection of the bona fide counterpart system: the agent or legal representative exceeds the limits of the legal person's power,which is not the right to exceed the power of the bona fide counterpart.The essence of good faith is a subjective state evaluation,which should not be limited to "do not know or should not know","know or should know" does not necessarily constitute malice.The doctrine of appearance in commercial rules requires that the intention of the actor should be presumed by the state of appearance.However,there are many interest subjects involved in the company,so how to balance the interests of related subjects of all parties should be taken into account,and commercial doctrine should not be applied absolutely.Judging the validity of the contract of over-authority guarantee by appearance should be limited to the case of relative human goodwill.In the case that it is impossible to determine the validity of the contract of over-authority guarantee by unified objective standard,the examination obligation of the relative person should be carefully considered.In the long run,it is suggested to take the decision-making organ,decision-making procedure and guarantee amount of the company guarantee as the items that must be recorded in the company's articles of association,so as to clarify the examination obligation of the relative party,and at the same time,to perfect and perfect the internal management mechanism of the company,so as to avoid the occurrence of unauthorized guarantee.