关键词: 对外担保, 公司前置决议, 效力性规范, 相对人, 缔约过错, 例外豁免

Abstract: In order to standardize corporate external guarantee and investments and other major decisions,curb the risk of the legal representatives unauthorized contracting,enhance corporate risk control competence,maintain dynamic transaction security,and promote high-quality economic development,it is necessary to activate the publicity and credibility of corporate democratic governance rules,and reconstruct the new order of market transaction security based on corporate compliance governance.The carrier that shows the true corporate intention is its resolution,rather than the signature and seal of the legal representative.The right of representation stems from corporate decision-making power,not the self-empowerment of the ultra violator.Article 15 of the Company Law is a validity rule.The guarantee contract signed by the ultra vires legal representative is invalid,unless the company resolves to recognize it or constitutes an apparent representative.When the contract is invalid or does not take effect against the company,the company is not at fault and is not liable for the damage of the counter-party,and the counter-party can only request the legal representative to perform the debt or compensate for the damage.The beneficiary of corporate security is the debtor,not the creditor.If the law has designated the resolution organ,the law shall prevail.If there are no provisions in the law,follow the articles of association.If there are no provisions in the articles of association,the counter-party shall verify the resolution of the shareholders meeting.The company must also secure the authorization of the shareholders meeting before providing guarantees to the related parties of the shareholders or actual controllers.The corporate pre-resolution on guarantee by the listed company shall comply with the rules on corporate resolution,disclosure and pre-contractual obligations.Paragraph 3 of Article 59 of the Company Law stipulates that the unanimous consent of all shareholders is a validity norm.The two-thirds shareholder signature consent rule created by Article 8 of the Interpretation of the Guarantee System of the Civil Code should be repealed.The corporate self-benefit guarantee,corporate counter-guarantee to the dual controllers,the one-person companys guarantee to shareholders,the business guarantee,and the non-public corporate guarantee for the wholly-owned subsidiary are all exempted.The requirement that the companys outward transfer of investment is included in corporate pre-resolution procedure is also a validity norm.

Key words: external guarantee, corporate pre-resolution, validity norms, counter-party,contractual fault, exemption