中国公司越权担保效力的裁判路径研究 - 基于106份裁判案例的实证分析 -

Abstract

The Ultra Vires Guarantee of Corporation means that the company (usually the legal representative) has violated the Article 16 of the Company Law of the People's Republic of China (hereinafter referred to as the Company Law)，Beyond the amount of guarantee the company's articles of association or without the approval of the relevant resolution authority and guarantee behavior for others or shareholders. The first thing that the Ultra Vires Guarantee of Corporation should solve is the legal effect, but through the statistics of 106 cases, we find there are differences in the adjudication path, which can be sum up as the following three kinds: the legal norms attribute path, the internal management norms path and the Limitation of legal authority path. According to analysis, the second path has been abandoned in the past two years, the dispute mainly focus on the other two paths. The former mainly by analyzing the normative attributes of Article 16 of the Company Law to judge the validity, it also has the dispute of effectiveness norm, management norm and other norms. The latter, on the basis of the legal limitations of the article 16 of the Company law, invokes the provisions of Article 50 of the former Contract Law of the People's Republic of China (hereinafter referred to as the Former Contract Law) on the rules of the apparent representation. Compared with the two paths, the legal permission restriction path is more reasonable, but also more in line with the legislative spirit of current laws and regulations. On November 8, 2019, the Ninth National Court of Civil and Commercial Trial Work Conference were issued, continuing the adjudication method of restricting the path of legal authority; later, the Civil Code and The Interpretation of guaranty in Civil Code been issued, Further provisions shall be made on the determination of the effectiveness of the guaranty beyond the company's authority. Clear unauthorized guarantee according to article 61 and article 501 of the civil code of the processing. The legal authority restriction path has been basically recognized by the legislation. However, based on the differences in expression and subjective understanding of different legal provisions, there are still some problems under the path that need to be improved urgently, such as disputes related to the review obligations of the other party, responsibility for guarantee in violation of regulations. Therefore, in order to further improve the adjudication rules of Legal Effect of the Ultra Vires Guarantee of Corporation, we should seize the opportunity of the revision of the Company Law, when applying the ultra vires representative rule to judge the effectiveness of guarantee, stipulate that the counterpart party shall conduct a reasonable and prudent examination of the articles of association and the contents of the resolutions of the company; Otherwise, an overstepped security would have no effect on the company . Otherwise, the overreach guarantee has no effect on the company and the company is exempt from liability. The counterparty and the legal representative shall bear the corresponding liability respectively according to the principle of fault.