公司越权担保效力判定路径之辨识

Identification of Approaches Taken in Determining the Effectiveness of a Guarantee Made by a Company beyond its Authority

实证分析发现,目前对于公司越权担保效力判定大致可从"《公司法》第16条规范属性"、"内部规范不具对外性"以及"法定代表人越权"三条路径展开。从界定该条文规范属性来认定担保效力是大部分法院所采纳的裁判路径(占比65.94%)。尽管对该行为的认定结果上共识渐进,判定有效占比87.77%,但该裁判思维进路存在一定质疑。该条的违反不能直接指向担保合同效力。同时,不少法院将商事外观原则适用绝对化,一味追求对交易相对人法益的维护,完全忽视公司及其股东利益的保护。基于此,同时考量《公司法》第16条立法本意,公司越权担保效力判定应抛弃从该条规范属性本身来判断其效力的路径,采纳法定代表人越权的路径来认定。由此,相对交易人的主观状态就成为越权担保效力判定的参酌因素,其"善意"应依据是否善尽合理的审查义务来推定,否则反推"恶意",并类推适用无权代理规则。这样既可厘清该行为法律适用上的不当,又可明确交易相对人合理的审查义务,以此平衡越权担保交易当事人之间的法益。

As it is found through empirical analysis,in general,three approaches,namely,＂the attribute of norm as stipulated in Article 16 of the Company Law＂,＂no externality for internal norms ＂ and ＂the ultra vires of legal representative ＂,are taken in determining the effectiveness of a guarantee made by a company beyond its authority. The identification of the guarantee effect using the predefined attribute of such norm is the judge approach taken by a majority of courts（accounting for 65. 94%of the total）. Though consensus is being reached in terms of the identification results of such acts and the judged effective ones accounts for 87. 77%,queries about the thinking approaches taken in making such judgment still exist. The violation of this article shall not directly point to the effectiveness of guarantee contract. Also,many courts follow absolute application of the appearance principle as adopted in commercial law and are in single-minded pursuit of the protection of the legal interests of trading counterparties,but they have completely ignored the protection of the interests of companies and their shareholders＇ interests. On this basis and also in consideration of the legislative intent of Article 16 of the Company Law,we should give up the use of the attribute of such norm itself to judge the effectiveness of a guarantee made by a company beyond its authority,instead,we should identify the same by taking the approach that the ＂conduct＂committed by a legal representative is beyond his or her authority. Therefore, the subjective state of the trading counterparties has become the factor that may be considered when determining the effectiveness of a guarantee beyond authority. The ＂good faith＂should be deduced based on whether or not the subject has performed the duty of examination to a reasonable extent,otherwise,＂malicious intention＂should be inferred in a reverse manner,and analogized that the principle of unauthorized agency should be applied.In doing so,not only can we avoid the inappropriate application of laws in an event where this kind of conduct is involved,we can also confirm the reasonable duty of examination that should be performed by the trading counterparties,in this way,we can balance the legal interests of the parties concerned in a trade that is guaranteed beyond authority.