Study On The Effect Of The Company’s Legal Representative’s Overstepping His Authority To Guarantee Abroad

Foreign guarantee of a company is an essential business matter for a company under the market system.Therefore,the Company Law was amended in 2005 to establish the right ability of foreign guarantee of a company in the form of Article 16,and at the same time,it created space for the legal representative to exceed his authority to provide foreign guarantee.Because the article 16 of the Company Law is still too abstract and there is no legal consequence of violating its provisions,there are disputes in both academia and judicial practice around the identification of the validity of the act of guaranty by legal representative exceeding his authority.The Minutes of the National Courts’ Civil and Commercial Trial Work Conference(hereinafter referred to as "Nine People’s Notes")is focused on responding to judicial disputes,establishing the path of limiting the authority of representatives,and defining the determination of effectiveness in the system of apparent representation,which is of great value.The Supreme People’s Court’s Interpretation on the Application of the Civil Code of the People’s Republic of China > on the Guarantee System(hereinafter referred to as the Guarantee Interpretation of the Civil Code)inherits and develops on the basis of the Nine People’s Notes,which makes the validity determination rules more complete and systematic.However,under the background of the current revision of the Company Law,how to take this opportunity to respond to the root controversy of the absence of the legal consequences of Article 16 of the Company Law? The only way to change the judicial judgment is to blindly invoke the Civil Code and abandon the current situation of the Company Law,so that the logic of Article 16 of the Company Law,Article 504 of the Civil Code and Article 7 of Guaranty Interpretation of the Civil Code is self-consistent and resonant.For this reason,this paper starts with the basic concepts and carries out research step by step.For a long time,the judicial referee or counterpart has fallen into the misunderstanding that the legal representative is the head of the company and has the highest decision-making power,and is suspicious of the legal representative’s overstepping power.This paper studies the effect of the act of guaranty outside the legal representative’s power,and starts from the definition of the connotation of the legal representative’s authority.It is difficult to hold the argument that the act of the legal representative is equal to the act of the legal person,and the authority of the legal representative is restricted by the law or the articles of association.Therefore,in theory,the legal representative has exceeded his authority to guarantee abroad.There are many disputes in judicial practice and academic circles regarding the validity determination,such as the normative object of Article 16 of the Company Law,the examination obligation and standard of the counterpart,the resolution authority under special circumstances,the attribution of the effect of guarantee behavior and the difference between the validity of guarantee contract.This article through to the company law article16 normative analysis,thought the which the internal and external validity,researches on the related theory in the articles of association,think of the other party reasonable review obligation,the effectiveness of the special circumstances that typed analysis,analysis of the "civil code" article 504,we think that the effect of guarantee contract effectiveness and guarantee behavior belonging should distinguish recognized,Only 504 Civil Code can comply with the logic of 540 Civil Code can the attribution of guarantee effect be regulated.The Jiu People’s Record and the Guarantee Interpretation of the Civil Code responded to the disputes over the examination obligation and the validity determination path of the counterpart,and established the representative authority limitation path,and the counterpart should undertake reasonable examination obligation.On this basis,this paper examines the identification rules of the effectiveness of external guarantee by the legal representative exceeding his or her authority,affirming the rationality of the limitation path of the representative’s authority under the Guarantee Interpretation of the Civil Code.Based on this,based on the background of the major revision of the Company Law,it is considered that the validity determination should be based on the principle of internal settlement of the Company Law,and the resolution of the path of representative authority established in the Guarantee Interpretation of the Civil Code is an exception.