Research On The Right Of Representation Of Legal Representative Of Companies

The legal representative system was born in the period of China’s economic system transition.The historical evolution,the nature,characteristics and functions of the right of legal representative have unique "Chinese characteristics".The representative with broad powers who has been registered has obvious advantages in maintaining transaction security and improving transaction efficiency.With the development of the market economy,the governance factors outside the company law fade out,and the issues related to the representation of the company’s legal representative should be discussed again,The basic idea of representation should change with the development of socialist market economy and the change of national policy system.The signing of contracts by the legal representative on behalf of the company is an important part of the right of representation,The transaction between the counterpart and the legal representative can greatly improve the transaction efficiency.However,with the increasingly centralized functions and powers of the legal representative,the possibility of the third party’s interests being harmed in the company’s foreign business activities is gradually increasing,which inevitably involves the problem of overstepping the authority of the representative and protecting the interests of the third party.The person who acts as the legal representative is a natural person and must have his own independent subject personality,Considering that the interests of the legal representative and the company cannot be completely consistent,In addition to safeguarding the interests of the company,the interests of the representative should be taken into account.Therefore,this paper mainly discusses the representation of the company’s legal representative from the aspects of the generation,nature,function,power,exercise of boundaries,the exercise of excessive power of representation,the protection of bona fide third party,and the termination of the right of representation.The first part analyzes the attribute and essence of representation.This part mainly deals with the nature,characteristics and functions of representation.The academic circle has been disputing whether the company representative should exercise the right based on the agent identity or the representative identity.The author puts forward his own opinions on this issue and analyzes the homogeneity of "representative" and "agent".The characteristics of China’s representation system are embodied in the following three aspects: the power of representation is only exercised by legal natural person,the scope of authority is broad and the power appearance is sufficient,and the position of company representative is institutionalized.On this basis,the author comprehensively describes the characteristics of legal representative such as the legality,uniqueness,broad competence and ambiguous status of the representative.Traditionally,China’s representation system has the functions of improving transaction efficiency,reducing agency cost and preventing abuse of power.However,in the process of implementation of the system there will always be different degrees of deviation from the ideal state,and the different factors that cause the deviation are likely to cause the renewal of the system alone or jointly.In this part,the author discusses the traditional function of representation,the dislocation and renewal of the function.The second part is the historical evolution of representation.The author mainly discusses the historical evolution of the right of representation from three aspects: the generation,the development and the finalization of the right of representation.This part explains the history of the legal representative right system from its birth to the present day,and discusses the way of the generation of the representative,that is,by the management or the executive.The third part is about the power and boundary of representation.The content of the right of representation is very rich,but the scope of the right of representation is not clearly defined in Chinese law.In this part,the author gives his own understanding of the specific content of the right of representation and analyzes the limits of the exercise of the right of representation.The fourth part is the exercise of overstepping authority and the protection of bona fide person.The representative’s exercise of the right of representation is restricted by laws and regulations,the company’s articles of association and resolutions,which will inevitably affect the relationship between the representative and the company as well as the relationship between the company and the counterpart.In other words,this part mainly discusses the internal and external effects of the limitation of the right of representation.Internally,it involves the responsibility of the representative to the company under the Unauthorized representative,while externally,it mainly involves the duty of care and interest maintenance of the counterpart under the Unauthorized representative.Part v termination of representation.This part mainly involves the active and passive termination of representation.Passive termination refers to the replacement of the legal representative,and the generation of representatives.The active termination involves the exercise of the right to resign of the representative.The resignation of the representative is mainly faced with legislative and judicial confusion.The author gives his own opinion on these confusion in this part.