| In recent years,my country's corporate capital system reform has been continuously advancing,committed to promoting company establishment,creating a good company living environment,and promoting economic development.After the establishment of the company,capital increase financing is one of the important channels to maintain the company's survival and expand the company's business scope and scale.Even with the further advancement of my country's reform and opening up and the evolution of global economic integration,Chinese companies have obtained more room for development,but the environment for their capital increase and financing is not optimistic.In this process,the role of the company's external guarantee system has become more and more important.At the same time,as the company's external guarantee system is gradually improving,the marketization of capital increase and debt reduction and economic exchanges are becoming more frequent,the company's external guarantee system exposed and hidden problems have gradually attracted attention and attention.Among them,the legal representative of the company exercises its powers in accordance with the law in the management of the company's daily operations,represents the will of the company,and engages in activities that represent the company.However,in the actual company's operation,the legal representative's behavior is not completely controlled by the company.There are external guarantees that go beyond the provisions of the company's articles of association and legal provisions,which triggers company lawsuits and shareholder lawsuits.The ultra vires act of the legal representative not only smeared the image of the company,but also weakened the independent status of the company as a legal person legally,and failed the rights and status conferred by the company.Therefore,regulating the behavior of the legal representative will have a profound impact on the orderly improvement of the environment in which the company and its legal representative are located in the operation of my country's capital market,as well as the guarantee of safety.At the same time,the court has also encountered problems in the judgment of related cases,such as different value evaluations and slight differences in the judgments of similar cases.There are still"confirmations" in the evaluation of the effectiveness of the company's legal representative for ultra vires and guarantee litigation.The three viewpoints of "valid","determined invalid",and "determined validity to be determined" have not yet fully formed a unified path of judgment.With the promulgation and formal implementation of the "Civil Code of the People's Republic of China",judicial organs at all levels have thoroughly studied the "Minutes of the National Courts Civil and Commercial Trial Work Conference" to guide judgments,and the handling of the issue of the company's legal representative's unauthorized external guarantees has gradually ushered in During the new period of change in the path of legal adjudication,it is expected that legal behavior norms and institutional systems can be formulated as soon as possible to effectively regulate this illegal act.In order to further explore the effectiveness of the company's legal representative's ultra vires guarantee,this article intends to discuss it from four parts.The first part is "Analysis of the relevant concepts and legal effects of the ultra vires guarantee of the company's legal representative".First,clarify the role of the legal representative in the company's operating system,and compare its authority with the identities of other non-statutory representatives of executives or shareholders.Secondly,the behavior of the company's ultra vires guarantee is different in essence from the behavior of the legal representative's ultra vires guarantee.Discriminating the two is the main basis for studying the thesis of this article.Finally,the legal effect of the legal representative's ultra vires guarantee behavior will be explained to pave the way for the following discussion.The second part is the "legislative analysis on the ultra vires guarantee behavior of the company's legal representative" at home and abroad.In accordance with the time,degree of relevance and order of the promulgation of the law,the relevant provisions of my country's 1993 Company Law,2018 Company Law,Civil Code,and Minutes of National Courts' Civil and Commercial Trial Work Meetings have been separately implemented.Analysis and interpretation.At the same time,through the collation and analysis of the regulations of Taiwan,the United Kingdom,and the United States regarding the ultra vires guarantee of the company's legal representative,it prepares for the constructive opinions presented later.The third part is "analysis of the judgment on the effectiveness of the ultra vires guarantee of the company's legal representative".Through case investigation and research on the relevant bulletin cases and typical cases of the Supreme People's Court,the most controversial issues in the adjudication views have been sorted out,and the current legal system has further revealed the existence of ultra-secure guarantees for legal representatives.The shortcomings and shortcomings of the legal system lead to inconsistent judicial judgments and affect the social credibility of the judicial system.The fourth part is "Recommendations on Regulating the Ultrasound Guarantee Behavior of the Company's Legal Representative".Regulating the ultra vires guarantee behavior of a company's legal representative requires not only improvements in legislation,but also optimization in terms of corporate governance and operation.First,clarify the definitions of relevant concepts in existing laws and regulations,and make judicial interpretations of controversial vocabulary;second,build a legal liability attribution and accountability system to solve the problem of lack of legal consequences;third,construct a comprehensive legislative interpretation framework to strengthen legal links,To clarify the standards for judicial judgments;finally,to improve the self-regulation in the company's business process,from the company's own perspective,to improve the effectiveness of the resolutions of the general meeting of shareholders,and to further protect the interests of shareholders and creditors. |
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