论法定代表人越权代表中善意相对人的认定

Rethinking of the Definition of Counter Party in Good Faith Under Legal Representatives UltraVires

法定代表人越权代表行为只对善意相对人有效。然而,何为善意相对人,立法上尚缺乏明确的认定标准,以致学界对此存在较大分歧。司法实践中也出现同案不同判的情形。实际上,一概推定相对人善意或推定相对人恶意的极端做法皆存误区,违背了公平原则。应综合考量相对人的商人与非商人身份、法定代表人权力限制的渊源、限权事项的性质来确立善意相对人的认定标准:法定代表人越权代表的事项,若为章程所限,推定商人知道而非商人不知道;若为权力机构所限,则推定相对人不知道。如其越权事项为公司重大事项,无论是章程所限或权力机构所限,均推定商人知道而非商人不知道。

Activities performed by legal representatives under ultra vires are only valid when the counter party is in good faith. However, current legislation does not provide precise standard or definition of what constitutes a counter party in good faith. The vagueness in such definition has led to disagreements in scholarly work and various judicial decisions regarding the same facts. Indeed, either the general presumption of a party in good faith or in bad faith is misleading, which runs counter to the rationale of equity and justice. When deciding whether a counter party is in good faith, the following factors should be considered: whether the counter party is a merchant or not;the sources from which the power of legal representatives are restricted;as well as the nature of the restricted events of legal representatives. That is to say, in scenarios where the events occurred by ultra vires legal representatives are regulated by articles of association or memorandum, it is presumed that the merchant should have known instead of not knowing;in scenarios where the events are regulated by company authorities or organ of power, it is presumed that the counter party should not have known. Meanwhile, if the events aforementioned are significant to the company, it is presumed that the merchant should have known (instead of the opposite), regardless whether it is regulated by the memo or the authority.