Study On The Effectiveness Of The Legal Representative’s Unauthorized Guarantee Contract

The dispute over the validity of the legal representative’s unauthorized guarantee has been stalemate.Through a statistical analysis of 140 cases and a review of 6typical cases,it can be seen that there are different judicial decisions in terms of the validity of the guarantee contract,the reason for adjudication,and the attribution of responsibility.From the disputes of practice and theory,three different adjudication paths can be concluded to determine the validity of the legal representative’s unauthorized guarantee contract: the legal nature of the article,the internal management norms,and the legal representation restriction theory.Compared with the first two refereeing paths,the legal representation restriction path can effectively achieve the legislative purpose and has a more legal basis.That is,based on Article 16 of the Company Law,which is the legal restriction on the authority of the legal representative of a company,attributing the effect of the guarantee act of the legal representative’s exceeding of its authority to the application of Article 50 of the Contract Law,combined with the Article 16 of Company Law serves as a criterion for judging whether the counterparty is in good faith,and then the effectiveness of the guarantee contract is obtained.Based on the statutory restrictions on the legal representative’s right to be represented in Article 16 of the Company Law,the counterparty of the guarantee contract must formally examine the provisions of the company’s articles of association and the content of the company’s resolution to prove his/her goodwill.The contract is valid for the company.If the counterparty of the contract has not fulfilled its obligations of examination,the provision of no agency shall be applied by analogy,and the contract of unauthorized guarantee is in a state of pending validity.If the company ratifies the legal representative’s ultra vires,the guarantee contract is valid for the company;on the contrary,the guarantee contract has no effect on the company.The company does not take the guarantee responsibility and should not bear the civil liability for the invalidity of the guarantee.The counterparty and the legal representative of the unauthorized contract should take their respective civil liabilities in accordance with the rule of contributory negligence.