Research On The Apparent Agency Of The Validity Of Contract Of The Company's External Guarantee

The judgment on the effectiveness of the guarantee contract in the company's external guarantee has been controversial in China's judicial practice,and there have been inconsistent judgments in practice.On November 14,2019,the Supreme People's Court issued the "Minutes of the National Courts' Civil and Commercial Trial Work Conference"(hereinafter referred to as the "Conference Minutes"),which unifies the judgment standards for the determination of the effectiveness of guarantee contracts in the company's external guarantees.The "Conference Minutes" considers Article 16 of the "Company Law of the People's Republic of China"(hereinafter referred to as the "Company Law")to be a power regulation,and the act of providing legal guarantees outside the board of directors,shareholders 'meeting or shareholders' meeting without authorization from the board of directors,shareholders 'meeting or shareholders' meeting is an unauthorized exercise proxy.In this case,if you want to determine whether the guarantee contract has legal effect on the company,you should check whether the creditor is in good faith in signing the contract.Apparent agency is a system created to protect the good faith counterparty in the conclusion of the contract,and it has an inevitable connection with the company 's external guarantee contract.Apparent agency will play a role in determining the legal validity of the company 's external guarantee contract.Important role.Based on the theoretical analysis,this article will conduct a typological analysis and research on the judgments that have come into effect after the release of the "Conference Minutes",and put forward suggestions for system optimization.This article is divided into four chapters:The first chapter is divided into two parts.The first part introduces the "Conference Minutes" on the determination of the effectiveness of the company's external guarantee contract,including the introduction of the current status of the company's external guarantee legislation,the analysis path of the company's external guarantee effectiveness,the introduction of the basic attitude of the "Conference Minutes" on the effectiveness of the company's external guarantees,and so on;The second part introduces the basic characteristics of the apparent agent,and thus concludes that the essence of the apparent agent is goodwill.The second chapter,This chapter analyzes and sorts out the goodwill issues of the company's external guarantees: first,the creditor 's goodwill will be affected by the legal representative 's agency rights;second,the review of the corporate resolution affects the creditor 's goodwill;third,the review of the articles of association affects the goodwill of the creditors;fourth,the goodwill of the creditors will be affected by the difference between the parties of the contract and the content of the contract.The third chapter,this chapter is based on the court's decision since the publication of the "Conference Minutes".Accordingly,five common situations are summarized: first,the courts judge the effectiveness of the guarantee contract through the creditor 's resolution review;second,the courts judge the effectiveness of the guarantee contract through the creditor 's association review;third,the cases that belong to the "exception without corporate resolution" provided in Article 19 of the "Conference Minutes";fourth,the cases where Article 16 of the Company Law is still considered to be a regulatory norm;fifth,in accordance with the "Supreme People's Court on Several Issues concerning the Application of Law in Hearing Private Lending Cases" and other legal provisions,which judges the legal validity of the company's external guarantee contracts.The fourth chapter,combined with the existing research status and the latest views on the apparent agency problem in the determination of the legal effect of the company 's external guarantee contract,summarizes the system optimization suggestions for the company 's external guarantee contract: first,according to the different types of creditors,establishing the corresponding review obligations;second,increasing the necessary records in the articles of association;third,establishing a company to provide a guarantee registration system.