Research On Effectiveness Of The Ultra Vires Act Of The Legal Representative

For a long time,the problem that the legal representative of the company overstepped his authority to guarantee has been a major controversy in the legal operation of Chinese companies.The dispute mainly revolves around the validity of the overstepping guarantee contract and the bearing of the overstepping guarantee liability.In order to solve this problem,this article combed the current judge case,summing up the experience of the trial,summarized the evolution of the thinking of court judgment in recent years,analyzed and summarized the court's views on the nature of article 16 of the Corporate Law and whether the degree of examination obligation of the counterpart should be used as the criterion to judge the goodwill of the counterpart,summarized the evolution of opinions on the degree of duty of care of counterparts,seeked the causes of inconsistency in court decisions and the relevant trends.The promulgation of the general principles of civil law making legal representative overstepped his authority to guarantee introduced into the field of expression of will and the scope of representative's authority.After analyzing the internal logical connection between the laws,it is suggested that article 16 of the company law is only one of the bases for judging the "goodwill" of the counterpart.In the identification of "goodwill",the obligation of review is an important evaluation method,however,the obligation to review also varies with the subject.For the legal representative's overstepping the power of guarantee,the mode with pending validity shall be applied.When the other party is in good faith,the legal representative's overreaching guaranty is applicable to the apparent representative rule,at this time,the unauthorized guaranty act is effective,the unauthorized guaranty consequence belongs to the legal person,the legal person may recover from the legal representative.When the counterpart is malicious,the unauthorized agency rule should be applied by analogy to the legal representative's overreaching guarantee,however,the company may ratify the unauthorized guaranty of the legal representative.In this paper,while defining the legal nature of the legal representative's overstepping the power of guaranty,combining with the latest legislative provisions to explore the optimal way of judgment.It is expected to achieve the goal of making up for the defects of the current system and solve the problemof measuring the interests of all parties when the legal representative oversteps his authority.