Analysis On The Judging Path Of The Company’s Overstepping The Power Of External Guarantee

Commercial guarantees have become an important part of modern business activities.The particularity of legal person status makes the company’s external guarantee behavior different from the natural person guarantee in civil law.The high risk of commercial guarantee makes the company’s external guarantee behavior different from the company’s general business behavior.Therefore,from the perspective of company law,the company’s external guarantees are subject to the rules of company autonomy and commercial appearance;from the perspective of contract law,the external guarantees are subject to the rules of "defects in meaning" and"representation of agents and representations".The formation of multiple legal regulations of the "Company Law","Contract Law" and "Guarantee Law" has resulted in the dispute over the company’s external guarantees,whether in theory or in practice,the core of which is the "effectiveness of external guarantees" ".This article intends to deconstruct the effectiveness of the company’s external guarantees from the perspective of corporate autonomy,and at the same time explores and sorts out the legislative trend of foreign company guarantees in conjunction with China’s Contract Law and reality.There are three main controversies in the academic field regarding the Article 16 of the Company Law.Based on the nature of company guarantees and the value orientation of the legislators in the company guarantee legislation,combining Article50 of the Contract Law and Article 61 of the General Principles of the Civil Law,it is not unreasonable to grant the company counterparty the obligation to review transactions in the form of company guarantees.It is practical and more conducive to achieving the balance of interests in company guarantees and ensuring transaction security,thereby forming a harmonious and mellow trading environment and commercial culture.By returning to the analysis horizon of the "Company Law",taking into account the legislative purpose of the company guarantee setting and the protection of the company’s stakeholders,it is a reasonable way to analyze the company’s guarantee counterparty’s review obligations.The referee path starting from the normative nature of Article 16(1)of the "Company Law" cannot accurately analyze the issue of the company’s external guarantees.The distinction between validity and mandatory regulations is not the correct legal basis for solving the problem.The ultra-representative approach provided in Article 50 of the Contract Law focuses on the representative authority of legal representatives,and is in line with the legislative purpose of Article 61,paragraph 3,of the newly released General Principles of the Civil Law.As a result,the counterpart’s review obligation enters the scope of investigation.The counterparty has the obligation to review whether the legal representative has exceeded its authority,and only needs to undertake the form review obligation on the company’s articles of association and guarantee resolutions.The counterparty has performed its due diligence and constitutes a representative.Failure to perform the review obligation,analogy applies the rule of no agency.If the company retrospectively acts beyond its authority,the company shall bear the legal consequences of the guarantee contract;if it is not retroactive,the guarantee contract will not have any effect on the company.According to Article 171 of the General Principles of the Civil Law,the surrogates shall bear the responsibility at this time.