Research On The Ultra Vires Guarantee Of The Legal Representative Of The Company

The issue of ultra vires guarantee of the legal representative of the company still has a focus of debate that is difficult to solve in both theoretical circles and practical judicial decisions.The main focus of debate is what acts of the legal representative constitute ultra vires guarantee and how to divide the liability of the representative’s acts for property losses caused by the company or the opposite party,Although there are many provisions in the company law of the People’s Republic of China(hereinafter referred to as the company law)and the civil code of the People’s Republic of China(hereinafter referred to as the civil code),due to the different understanding of the legal provisions,the judgment and judicature of all parties are different.It not only can not effectively regulate the behavior of ultra vires guarantee,but also makes the interests of all parties unbalanced.Therefore,based on the above background and problems,by studying the judgment on the effectiveness of ultra vires guarantee in China’s current judicial judgment,this paper sorts out the focus of debate on the existence of ultra vires guarantee by the legal representative of our country,makes theoretical research and Analysis on the main focus problems in the judgment in combination with the basic principles of civil law and relevant laws and regulations,and puts forward a reasonable interpretation path.This paper is divided into four parts: the first part is based on the basis that the legal representative can provide guarantee in the name of the company,and then defines the concept of ultra vires guarantee of the legal representative of the company,so as to launch the judicial judgment status of ultra vires guarantee of the legal representative,and sort out the current disputes about ultra vires guarantee of the legal representative.The second part,based on Article 16 of the company law,first discusses the dispute over the determination of the legal representative’s ultra vires provision of connected guarantee and non connected guarantee,and defines the standard on the basis of combing the views of scholars and the Supreme People’s court.The third part analyzes the effectiveness of the legal representative’s ultra vires guarantee.This paper expounds that the apparent representative system is cited as the theoretical basis for the determination of the company’s legal representative’s ultra vires guarantee effectiveness,that is,whether the counterpart is in good faith to judge the effectiveness of the guarantee contract.It also discusses whether the opposite party has the obligation of review and how to perform the obligation of review.Finally,it is determined that the guarantee is effective and effective for the company in the case of good faith of the opposite party.On the premise that the opposite party constitutes non good faith,the types of ultra vires guarantee effectiveness of the legal representative are divided.The fourth part determines the liability of the company or the legal representative to the opposite party according to the effectiveness of the contract of the legal representative’s ultra vires guarantee.For this part,if the guarantee contract is valid due to the goodwill of the opposite party,there is no clear provision in China’s law on how to recover internally after the company undertakes the guarantee liability.Secondly,when the counterpart constitutes non goodwill,the legal representative’s external liability can be clearly stipulated.