On The Determination Of The Validity Of The Company's Ultra Vires Guarantee Contract

Article 16 of the current "Company Law" clearly stipulates that the company must provide internal guarantees through internal company resolutions.Compared with the 1993 "Company Law" Article 60,paragraph 3,"Directors and managers shall not provide guarantees for others with the company's assets".It is said that the current law is more suitable for today's commercial market.The former recognizes that the company has a security right,and makes clear provisions on the company's internal resolution authority,voting procedures and guarantee limits,in order to achieve the purpose of regulating the company's external guarantee behavior.However,the legal representative People pursue their own interests,deliberately bypass the company's internal resolution organization,and the cases of unauthorized use of company assets to provide external guarantees have increased in recent years.Article 16 of the "Company Law" also does not clearly stipulate the status of the contract in violation of this law,resulting in The judiciary cannot agree on the validity of such guarantee contracts,and even the phenomenon of "different judgments in the same case" exists.The amount of the legal representative exceeding the authority to provide external guarantees will become an invisible liability of the company,seriously endangering the company's property security and shareholders' Related interests.Therefore,the issue of the determination of the effectiveness of the unauthorized guarantee contract needs to be resolved urgently.This article uses literature analysis and empirical analysis to combine theory and practice,and focuses on the determination of the effectiveness of the company's unauthorized guarantee contract.Through the analysis of cases in recent years,it finds out the impact on the effectiveness of the company's unauthorized guarantee contract the elements of.The first chapter analyzes the general rules for the determination of the effectiveness of the unauthorized guarantee contract.The second chapter discusses the research methods,sample collection and data statistics,and analyzes the three referee paths of the unauthorized guarantee through the empirical analysis method.Relevant cases,taking advantage of the situation,looking for the judiciary 's tendency to determine the validity of unauthorized guarantee contracts,and the influencing factors of the determination of the effectiveness of unauthorized guarantee contracts.Chapter III focuses on the analysis of "representative representatives" involved in unauthorized guarantees."The discussion of the composition extends the necessity and review standards of the counterparty's review obligations in the unauthorized guarantee.The author tried to use the influencing factors as an entry point,and argued that "Article 16 of the" Company Law "belongs to the limitation of the legal representative's authority,and then judges whether the representative representative is established according to Article 50 of the" Contract Law ".The best choice for contract validity determination.From the point of view of responsibility,it is unreasonable to divide the attributes of Article 16 of the "Company Law" through "mandatory provisions";from the point of jurisprudential logic,there is also "causal confusion" in this move Defects.And the article is regarded as the legal representative 's authority limitation condition,which is to focus on the normative purpose of the law,so that it can be “liberated” from the dispute of the attribute.Then,it is judged whether the counterpart is exhausted.Obligations,the ability to self-certify good faith,whether the representative is established,and the responsibility for the unauthorized guarantee contract are divided between the two parties.This kind of judgment can not only avoid the parties from suffering unreasonable losses,but also reflect the fairness of the law.