Liability Determination Of Legal Representative's External Guarantee

The shareholders' meeting is expressly stipulated in Article 16 of the Company Law as the decision-making body for the company's external guarantee,and the decision right to external guarantee no longer belongs to the legal representative.However,there is no detailed regulation on the validity of the guarantee contract concluded by the legal representative without the consent of the shareholders' meeting,which leads disputes unceasingly to appear in the judicial practice.Under the representative theory of our country,the legal representative generally enjoys the general and unrestricted right of representation,which makes it difficult to identify the ultra vires of Article 50 in the Contract Law.This paper takes the real case of “contract dispute of the Lee's charge against Zhang,Le's company and Li Cai” as the object of the analysis,and discusses and analyses the dispute by focusing on the dispute focus of this case.It is clear that Le's company is not a borrower listed in the loan contract,and the second paragraph of Article 16 of the Company Law is not a direct basis for judging the validity of the contract,which will not directly affect the validity of the guarantee contract.However,on the basis of clear restrictions on the security interests and the publicity and credibility of the law of legal representatives,the clause has a leading effect and has an indirect effect on the validity and invalidity of the contract.The conclusion of the guarantee contract by the legal representative without the decision right of external guarantee constitutes the ultra vires that regulated by Article 50 of the Contract Law,whether the company undertakes the consequence of the legal representatives' ultra vires is the right question around the dispute focus.The validity of the contract and the attribution of the consequences are two sides of the problem.It is more appropriate to determine the company's guarantee liability with the consequence of ultra vires as the breakthrough.When the legal representative exceeds the legal restrictions,the relative person cannot be presumed to be goodwill.If the relative person cannot prove itself to be goodwill,then the guarantee liability arising from the guarantee contract should not be borne by the company,but the company should bear the civil liability leading to the invalidation of the guarantee.In addition,the ultra vires system and the unauthorized agency system show the substantial differences,so unauthorized agency rule cannot be applied by analogy.During the process of identifying the relative person's goodwill,the obligation of formal examination should be determined.It is in conformity with the nature of formal examination to conduct the examination from the aspect of the resolution authority,the identity of the resolution subject and the proportion of voting.Finally,the second paragraph of Article 16 in the Company Law should be improved.