Research On The Effectiveness Of The Company's Ultra Vires Guarantee Contract

The identification path of the effectiveness of the company's ultra-guarantee guarantee contract can neither simply rely on the normative attribute classification of Article 16 of the Company Law,nor can it be overhead.Article 16 directly applies Article 50 or 49 of the Contract Law.Articles should be based on the representation of the "Contract Law" or on behalf of the agent,combined with the internal distribution rules of the company's guarantee decision-making authority in Article 16 of the "Company Law" to examine whether the provision affects the third party's goodwill.Therefore,the applicable space of the review obligation is discussed,and the effectiveness of the contract is determined by the counterparty's review obligation as the breakthrough point.Introduction In the following,the paper is divided into three parts:First of all,the dispute over the effectiveness of the over-authority guarantee should ultimately be related to the application of the representative or representative agent in Article50 or Article 49 of the Contract Law.The key point of the identification of the representative or the agent's effectiveness is that the relative person's "good faith" is determined,and the "good faith" proof needs to be reviewed.At the same time,based on the principle of risk and benefit equity,the burden of proof of whether to perform the review obligation diligently is assigned to the opposite person.Second,the basic idea of the relative person performing the review obligation.The way in which the relative person performs the review obligation is to actively perform as the starting point,and the specific review object when the relative person's review obligation is clarified is the company's articles of association and the company's resolution,and establishes that the relative person needs to reach a prudent formal review standard,and establish a relative person to perform the review obligation.The basic idea.At the same time,when the relative person is performing the review obligation,whether the different types of guarantees and the nature of the company providing the guarantee affect the application of the review obligation,whether the relative person's formal review obligation must be “malicious” and whether the company ' s articles of association do not stipulate whether the guarantee decision-making body Some aspects have been discussed influencing the application of the review obligation.Finally,the law explains the impact of development trends on the review obligations.Article 61 of the General Principles of Civil Law and Articles 49-50 of the Contract Law on the protection of bona fide persons are conducive to the approval of the application of censorship obligations in theory and practice.At the same time,the General Office of the Supreme People's Court drafted the "Interpretation(Draft)of the Supreme People's Court on the Application of Legal Issues in the Trial of Cases of the Company's Warranty for Others"("Interpretation of External Guarantees"),"Interpretation of External Guarantees(Draft)" The presumption of knowing and the recognition of the representation of the representative further consolidate the application of the review obligation.However,in view of the shortcomings of the “ exceptions of resolutions ” formulated by the “ External Guarantee Interpretation(Draft)”,the function of the review obligation has an overhead.This paper proposes to delete the content of the item in order to give full play to the function of the relative person review obligation system.