Research On The Effectiveness Of Unauthorized Guarantee Of Corporate Legal Representative

At present,both academic circles and judiciary circles have much controversy over the validity of legal representative's ultra vires act and the application of law.Article 16 is one of disputed issues in Chinese Company Law.By analyzing the regulated object and normative nature of the company law,it can be found that the company law is mainly about the management norms of internal power arrangement and distribution in corporate governance.The company law article 16 of the provisions of the company guarantee decision-making mechanism,which is designed to provide the legitimacy and procedural requirements with respect to the meaning of decision power ownership and the exercise of the power to provide the guarantee to the other party by a company.Article 16 concerns to the inner decision-making procedure of a company about the affair of corporate guarantee,rather than the conduct of guarantee between a company and a third part.At the same time,based on the effectiveness of publicity of the law,from the perspective of the relative party,it constitutes an exception to the general authorization of the legal representative.As for whether the legal representative is authorized to represent the company for external guarantee,the relative party shall have certain examination obligations.When the other party fulfills its examination obligation in good faith,the legal representative's overstepping right to guarantee is effective,that is,the effectiveness of the overstepping guarantee belongs to the company.The company has become a very important commercial subject in today's society,which is generally endowed with the personality of legal person in order to facilitate transactions.Although there are many theories about the essence of corporate personality,as an organizational body,its behavior must be expressed with the help of a specific natural person or combination of natural persons.In the normative system of the general principles of the civil law,the natural person who serves as the legal representative monopolizes the determination and expression of the legal person's will,forming the "sole representative system" with Chinese characteristics,which leads to the abuse of the legal representative's power to harm the interests of the company and other problems.Based on the legal person's meaning expression logic and corporate governance structure theory of the distinction between meaning determination and meaning expression,this paper reinterprets the representative authority of the legal representative,the representative authority of the legal representative is limited to the exercise of the right of meaning expression on behalf of the company on the premise that the legal representative cannot be authorized or authorized.Thus,it is more clear whether the representative's act of legal representative constitutes overstepping his power.As for the application of the rule of apparent representation,since the law does not specify how to identify the bona fide counterpart,this paper agrees to grant the counterpart a certain degree of formal examination obligation,and focuses on analyzing the scope of the examination obligation of the counterpart.For the situation that the overstepping guarantee of the legal representative of the company does not constitute the apparent representative,this paper proposes that the unauthorized agency rule should be applied by analogy.For the company's legal representative in violation of the company law article 16 the guaranty behavior,this paper puts forward the following specification path,namely,should with permission by the legal representative and the company law article 16 to the starting point,to judge whether a unauthorized by the legal representative,and then apply "contract law" article 50 or of article 11 of the security law of judicial interpretation rules and apparent representation of "the general civil law" the 171 th unauthorized agency ultra vires rule evaluation effectiveness,only as a legal person,the representative behavior belongs to research the necessity of the guarantee contract effectiveness.