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 - = A study on the Legal Effect of the China Ultra Vires Guarantee of Corporation - Based on empirical analysis of 106 cases -

다국어 초록 (Multilingual 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.

참고문헌 (Reference)

• 1 蒋大兴, "超越商事交易裁判中的普通民法逻辑" (02) : 2021
• 2 朱广新, "法定代表人的越权代表行为" (03) : 2012
• 3 刘贵祥, "民法典关于担保的几个重大问题" (01) : 2021
• 4 钱玉林, "寻找公司担保的裁判规范" (03) : 2013
• 5 李游, "公司越权担保效力判定路径之辨识" (12) : 2017
• 6 王东敏, "公司法规定对公司与他人签订担保合同效力之影响" (10) : 2018
• 7 施天涛, "公司法第16条的规范目的：如何解读、 如何适用？" (03) : 2019
• 8 肖伟志, "公司法第16条强制性质解释的误区及重构" (06) : 2017
• 9 刘俊海, "公司法定代表人越权签署的担保合同效力规则的反思与重构" (05) : 2020
• 10 高圣平, "公司法定代表人越权担保效力判断的解释基础——基于最高人民法院裁判分歧的分析和展开" (01) : 2019
• 11 梁上上, "公司担保合同的相对人审查义务" (03) : 2013
• 12 吴越, "公司担保合同中相对人审查义务的边界" (04) : 2020
• 13 陈冲, "公司对外担保效力问题研究—基于司法裁判的分析与反思" (83) : 2011
• 14 甘培忠, "公司对外担保制度的规范逻辑解析——从〈公司法〉第16条属性认识展开" (03) : 2021
• 15 邹海林, "公司代表越权担保的制度逻辑解析——以公司法第16条第1款为中心" (05) : 2019
• 16 朱慈蕴, "全球化与本土化互动中的公司制度演进" 法律出版社 2015