A Study On The Effect Of Ultra Vires Guarantee By The Legal Representative Of A Company

There has always been a great controversy about the behavior of the company providing guarantee to the outside world.The guarantee system itself is a relatively common legal system in the market economy,which is a bridge between the financial market and the enterprise.Making good use of the guarantee system is conducive to promoting the transaction and improving the security of the transaction,and further promoting the development of the market economy.But for the company,the guarantee is a kind of unconventional operation behavior,because it has great economic risk.If the legal representative guarantees beyond his authority,his behavior may make the company bear the debts that it should not have,if the conditions under the guarantee contract are established.The company will use its own property to pay off its debts.This situation is obviously contrary to the company's profit-making purpose,and for the consideration of maintaining the company's capital enrichment,the company should strictly control when providing external guarantee to avoid unnecessary damage to the company and its shareholders.However,in practice,due to the prosperity and development of the financial industry,as the main commercial subject in the market economy,in order to obtain financing,many companies will provide guarantees for the debts of others,which can not bring direct economic benefits to the company,but also a common credit enhancement measure in the economic market.At the same time,along with the emergence of a lot of corporate legal representatives signing security contracts for personal interests,the final legal consequences will be borne by the company,which brings unnecessary losses to the company,which is why there is a great controversy on the effectiveness of ultra vires security.Article 16 of the company law of 2005 clearly stipulates the restrictions on the procedure and resolution organization of the company's external guarantee,but there are also unclear provisions on the legal consequences caused by the violation of this article,which brings great controversy to the theoretical circle and the judicial practice circle.Although there are some provisions in the guarantee law and contract law,there are no more accurate provisions,and there are no specific provisions on the validity and liability of guarantee.As a result,the company's external guarantee is almost free from the constraints of laws and regulations and thearticles of association.As long as the legal representative of the company signs and seals the guarantee contract,it will have legal effect and bear certain guarantee responsibility when the conditions are met.The loopholes in the legal system cause the legal representative of the company to guarantee in the name of the company without authorization for personal interests,damaging the interests of the company's creditors,the company and small and medium shareholders,which leads to the increasing number of cases related to the company's external guarantee in the judicial trial.As for the validity of the company's legal representative signing the guarantee contract beyond the authority,the current mainstream view is to judge based on Article16 of the company law.However,due to the lack of unified understanding of the nature of Article 16 of the company law,there are different judgments for the same case in the judicial trial,even the highest law will have different judgments for similar cases in a period of time The results.There are also such divergences in the theoretical circle.When determining the legal representative's ultra vires signing the security effect,the court will make a comprehensive judgment in combination with the relevant provisions of the contract law and the security law.At this time,the difference is around the standard of good faith.In order to study this problem,the main idea of this paper is to collect a large number of legal documents about the legal representative's ultra vires guarantee cases through Internet search,and then sort out the legal representative's ultra vires guarantee cases in judicial practice,sort out and analyze the court's main adjudication paths for such cases,through which different judgments can be made in different periods or even in the same period By comparing the reasons,this paper sums up the focus of the dispute in the case of the legal representative's ultra vires guarantee.At the same time,it analyzes the research on the effectiveness of the legal representative's ultra vires guarantee as a whole and makes a concrete analysis in the light of the various views of the experts and scholars in the theoretical circle on the theory of the legal representative's ultra vires guarantee and the minutes of the civil and commercial trial work meeting on this issue,in order to get more clear A definitive solution to the dispute.