| It is common in commercial transactions that the company provides guarantee to others by its assets,which not only plays a significant role in promoting financing,optimizing the allocation of resources and inspiring economic development and efficiency,but also contributes to the company’s access to potential business opportunities.It enables companies,especially those small and medium-sized companies who have difficulty in financing,to conduct business activities more flexibly.However,in practice,the frequent occurrence of legal representative’s abuse of authority to provide guarantee without the company’s consent has caused serious losses to the interests of company,members and creditors,and has led to huge market risks and challenges,which urgently needs to be regulated.With the continuous research advancing in the theoretical and practical field,the consensus has gradually formed about the normative application of unauthorized guarantee,that is,the company law rules cannot be applied to such issue singly,and the relevant specific norms in different statutes should be systematically integrated and interpreted.Especially after the introduction of the Minutes of the National Court of Civil and Commercial Trial Work,it is worthy that starting from the Article 16 of the Company Law and judging the belonging of the legal representative’s behavior by the rules of ultra vires in the civil law has become the mainstream in the judicial adjudication.However,the paradox emerges,that no matter how many different opinions exist on the issues such as the normative understanding,the constitutive requirements,and the attribution of the behavior about the unauthorized guarantee,the judges eventually tend to determine that the company bears the liability of guarantee or a certain proportion of the liability of compensation without sufficient reasons.Therefore,it is necessary to consider and reflect on the adjudication in order to identify the guiding role of the law and maintain the judicial authority.The Article 16 of the Company Law,regulates the procedure of company’s guarantee and indicates that the legal representative does not have the authority to provide guarantee alone on the behalf of company.Combined with the Article 504 of the Civil Code,it is clear that the bona fide creditor shall carry out a kind of reasonable obligation to review certain documents,including not only the resolution made by the board of directors or members regarding the company’s guarantee,but also documents such as the company’s articles of association,in order to confirm that the legal representative does not exceed authority and the resolution veritably expresses the company’s intention.Unless specific exceptions set by the law,if the creditor fails to undertake such obligation,it depends on the company’s ratification whether the unauthorized guarantee belongs to the company.If the company does ratify such guarantee,it shall certainly bear the relevant responsibility.If the company does not ratify such guarantee,it will be excluded from any kind of responsibility to the creditor.Compared with the “black or white” legal interpretation under the valid law system,this analogical application of the unauthorized agency theory is the better choice to interpret the attribution problems of unauthorized guarantee,which not only drives the creditor to undertake the responsibility to review documents and otherwise excludes the creditor from the protection of law if the company refuses to ratify the unauthorized guarantee,but also preserves the autonomy of will and safeguards the interest of company.The existing regulations stipulate that the company should be liable for the unauthorized guarantee provided by the legal representative even when the creditor is not in good faith,which is a wrong practice of unduly emphasizing on transaction order and judicial convenience,over-protecting the creditor and ignoring the interests of the company.Such rules are not helpful to reduce the phenomenon of unauthorized guarantee and should be corrected. |
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