Research On Judicial Identification Of Bona Fide Counterpart Under The Ultra Vires Guarantee

With respect to the problem that a company provides guarantee with ultra vires,related theory and practice in our country has gradually shift the focus to the question of whether the counterpart is in good faith.The judicial identification of bona fide counterpart is of great significance to judge the validity of the ultra vires guarantee.Only when the counterpart of the transaction is in good faith,the validity of the ultra vires guarantee can be confirmed.Ignoring the identification of bona fide counterpart is likely to lead to the absolute application of commercial externalism,and thus fail to protect the interests of the company and its shareholders in a balanced way.In the ultra vires guarantee,the emphasis of the inspection of bona fide counterpart is mainly based on commercial externalism and Good Faith principle,so as to achieve the purpose of properly allocating the rights and obligations between subjects and balancing internal and external legal interests of the company.Meanwhile,through combing the relevant legislation and judicial cases,we can find that the performance of the examination duty of the transaction counterpart has certain legitimacy and necessity.However,in view of the complexity of the social subject and its behavior,the standard of the examination duty should not be rigidly judged according to the simple form examination or substantive examination.In order to ensure the feasibility of the counterpart performing the examination duty in the company guarantee,the bona fide counterpart should be identificated flexibly according to the condition of the concrete case,so as to properly balance the interests of each subject and achieve fairness and justice to the greatest extent.In consideration of many market participants involved in the company’s ultra vires guarantee and extremely complex legal relationships,the people’s court should focus on the following factors when handling such disputes to identify the bona fide counterpart: the identity difference of the counterpart,the type of guarantee company,the source of restriction on the right of the legal representative and the materiality of ultra vires guarantee.First,The transaction counterpart can be divided into merchant and general commercial subject.The disparity of the examination ability requires the merchant to undertake more strict examination duty,while the general commercial subject should be given special consideration based on the limitation of their own ability.Second,due to the special regulation of legislation on listed companies and the maturity of their own governance paradigm,if the counterpart accepts the guarantee provided by listed companies,he should perform the examination duty strictly,which is also the well-deserved meaning of correcting the illegal guarantee of listed companies.Third,requirements for the burden of proof of the counterpart also vary with the source of restriction on the right of the legal representative.When the restriction belongs to statutory restrictions,it is not subject to the change of private contract.So,the counterpart of the transaction must strictly fulfill the examination duty as prescribed by law.Finally,if the guaranteed transaction is not ordinary daily business,the counterpart should bear a higher duty of care.