《民法典》中法人或非法人组织越权原则的反思

Reflection on the Ultra Vires Doctrine of Legal Person or Unincorporated Organization in the Civil Code

《民法典》合同编第504条仍坚守法人越权相对无效的立场,第505条还残留法人经营范围决定缔约能力的影子。这意味着编纂者未能全面总结和吸收我国立法和司法改革的成果,顺应私法现代化的世界趋势,在法人越权规范上难以适应社会发展的需要。越权原则未来发展和完善的方向应当是根据法人的性质区别对待,对非营利性法人适用越权无效原则;而对营利性法人须优先保护交易安全,彻底废除超越原则。在营利性法人与第三人的关系上,法人自治规范或决议对法定代表人代表权的限制,不得对抗第三人。民法典须保持安定性,关于越权原则的立法缺憾短时间内无法消除,权宜之计是司法解释应限制法人越权相对无效的适用范围,拓展交易安全的领域。

The Article 504 in Part Ⅲ Contract of the Civil Code still stands the ground of relative invalidity of a contract concluded by a legal person beyond the scope of his authority, and the Article 505 keeps the residual shadow that the business scope of a legal person is decisive to the ability of concluding a contract. It means the compilers of the Code did not comprehensively summarize and absorb the achievements of our legislature and judicial reform, did not follow the trend of private law modernization in the world, other than being conservative in the regulation of situations upon excess authority of legal person. The right way to improve and keep progress of the ultra vires doctrine should, according to the different natures of legal persons, apply the ultra vires doctrine to the non-profit legal person, and give priority to protect the transaction safety of the for-profit corporation by completely abolishing the ultra vires doctrine. Upon the relations of the for-profit corporation and the third party, the rule or resolution of the legal person self-governance shall not limit the right of representation of the legal representatives against the third party. Considering the Civil Code should maintain stability, and the legislative defects of the ultra vires doctrine cannot be eliminated in a short period, it is wise to limit by judicial interpretations the scope of relative invalidity of a contract concluded by a legal person beyond the scope of his authority, and to expand the territory of transaction safety.