Abresearch On The Problem Of Ultra Vires Guarantee Of Company Legal Representative

This article takes the problems of ultra vires guarantee of the legal representative of the company in judicial practice as the starting point and through the analysis of the decisions of the Supreme People’s Court on similar cases in the past three years,it is found that different judges have different understanding of the nature of Article 16 of the Company Law,thus making different results of decisions.Accordingly,the problems of the ultra vires guarantee system in judicial practice are found to exist:1.controversial in judicial practice regarding the nature of Article16 of the Company Law.2.different criteria for determining the good faith of the relator.3.unclear liability for ultra vires guarantee.Regarding the nature identification of Article 16 of the Company Law,the law currently interprets this article as a restriction on the legal representative’s right to representation,which unifies the adjudication path to a certain extent,but there are still judges in judicial practice who adopt the adjudication path of normative nature identification,leading to the phenomenon of different judgments in such cases.This article considers that the legislative purpose of Article 16 of the Company Law is to form a unified norm within the company.Therefore,it is more consistent with the purpose of the legislation to identify this article as a restriction on the authority of the legal representative to represent.Regarding the identification criteria of the bona fide relator,the main point of difference lies in the object of review of the relator and the review criteria.For the object of review of the relator,it should include the articles of incorporation and the resolution of the resolution authority;for the standard of review,there are differences of formal review,substantive review and reasonable review,this article believes that the review obligation of the relator should not be formal,but also should not make the relator bear too heavy review obligation,so the flexible review standard should be introduced.For the issue of liability after the effectiveness of the ultra vires security contract is determined,this paper proposes that a direct liability mechanism can be established for the legal representative,who will be directly liable for his ultra vires acts.In the case that the relator is not in good faith,the analogous application of the mechanism of powerless agency should be introduced to solve the problem of liability after the legal representative of the company exceeds the authority of the guarantee.