Research On The Effectiveness Of Ultra Vires Guarantee By Legal Representatives

Article 16 of the Company Law is dedicated to regulating the guarantee behavior of companies.Due to the deviation of judges’ understanding of the nature of Article 16 of the Company Law and the different views on the attribution of the scope of validity of guarantee contracts and the determination of the validity of guarantee contracts,the phenomenon of inconsistent application of law and "different judgments in the same case" arises in judicial decisions.This thesis focuses on the judicial practice cases,explores the legislative spirit of Article 16 of the Company Law,unifies the application of law,and explores a more scientific and reasonable judicial adjudication path from theory and practice.The first chapter of this article provides a comprehensive overview of The background and significance of the choice of the topic,the current state of relevant research in Mexico and abroad,as well as the investigation methods and the content of the article.The second chapter clarifies the conception,system and origin of the guarantee of ultra vires by the legal guardian,and at the same time raises questions to investigate the root causes of the phenomenon of "different decisions in the same case".Chapter three provides legal analysis of the problem,and there are three views on the nature of Article 16 of the Company Law,one of which is the theory of the nature of legal norms,which is divided into mandatory norms or arbitrary norms,and gives them corresponding properties according to the classification of norms;The second is the limitation of representation rights,which holds that Article 16 belongs to the internal management provisions of the company,which is only a constraint on the representative power of the legal representative,and determines the ultra vires by exploring whether this legal norm has external effect.Therefore,the path of judicial adjudication is divided into two parts,one is the normative interpretation path,and after exploring the true meaning of Article 16 in combination with textual interpretation,historical interpretation,purpose interpretation and system interpretation,it is found that it is not the best path for judicial adjudication;The second is the interpretation path of the statutory authority restriction theory,which recognizes the externality of Article 16,and after determining that legal representation is an encumbrance in excess of authority,combined with the representative system in the Civil Code,the good faith of the counterparty is used to determine whether the scope of validity of the guarantee contract extends to the company.Chapter IV solves the problem,based on the approach of the statutory authority restriction,follows two lines and a two-step logic,and determines the scope of effect and the validity of ultra vires security respectively.The first line is whether the scope of validity of the guarantee contract extends to the company,which needs to be determined in combination with whether the counterparty has fulfilled its review obligation and whether it is in good faith,and when the counterparty is malicious,the powerless agency system will be applied by analogy,and the company will be given the right to recognise;The second line is the determination of the validity of the guaranty contract,i.e.,the determination of whether there are statutory contingencies that render the contract void.Chapter 5 improves solutions,puts forward feasible suggestions on shareholder rights remedies and standardizes the corporate governance model,and strives to combine "source rectification" and "post-event treatment" to effectively suppress and resolve the legal representative exceeds his authority to guarantee the chaos of the dispute.