论上市公司对外担保公告的体系定位——以《民法典担保制度解释》第9条为中心

On System Orientation of Listed Companies’ External Guarantee Announcement

《民法典担保制度解释》第9条以公告为中心,构造了上市公司对外担保规则,但公告影响担保合同效力的机理尚待阐释。作为证券监管规则之公告,本与交易规则相分立,因应金融司法的政策之需,二者呈融合之势。在上市公司内部关系中,对外担保公告系公司决议的特别生效要件;在外部关系中,对外担保公告系公司对外担保代表权的外部授予方式。对外担保公告影响担保合同效力的机理随之清晰:无公告、有决议时,担保合同不生效,系因决议未生效,上市公司法定代表人无签订担保合同之授权,相对人非为善意;有公告、无决议时,担保合同对上市公司发生效力,系因公告采纳了代表权外部授予之方式,由此构成表见代表。出于上市公司对外担保的特殊性,事后公告不应认定为系对担保合同之追认。

Article 9 of The Supreme People’s Court’s Interpretation of the Security System of the Civil Code construct the external security rule of listed companies with proclamations as the center, but the mechanism of proclamations affecting the validity of security contract remains to be explained. As the proclamation of securities regulatory rules, originally separated from trading rules, according to the needs of financial judicial policies, the two are merging. In the internal relations of listed companies, the proclamation is the special effective requirement of resolutions;in the external relations, the proclamation is the external authorization method of the right of external security representation. The mechanism of external security proclamations affecting the validity of security contract becomes clear: when there is no proclamations but a resolution, the security contract will not take effect, because the resolution has not taken effect and the legal representative of the listed company has not been authorized to sign the contract, and the counterpart is not in good faith;when there is a proclamation but no resolutions, the security contract becomes effective for the listed company because the proclamation adopts the external authorization method of representative rights and thus constitutes apparent representation. Due to the particularity of the external security of listed companies, the post-proclamation should not be regarded as the ratification of the security contract.