" company method " what adjust the 16th times is item of company interior management, sex of effectiveness of and rather than sets compulsively, cannot deny the company assures external accordingly merely the effectiveness of the contract, but also do not mean this contract because of this affirmatory and effective, its still need the relevant provision of basis contract law whether effectively to undertake making an on-the-spot investigation, whether does analytic lender belong the opposite person with blameless kindness. This case is judged from general society common sense, as the Wang Longjiang of opposite person, ought to know Liang Tingguo is in " loan agreement " on build official seal of company of Shou Guangan Wei to provide the action that assure, it is to have no right to act as agent behavior, and do not belong to a watch to see acting action. Did not hold water to assure effectively between company of Shou Guangan Wei and king dragon river the contract concerns, company of Shou Guangan Wei need not be assumed assure responsibility.
Summary of details of a case:1, Wang Longjiang and Liang Tingguo sign " loan agreement " : Liang Tingguo loan of Xiang Wanglong river 12.9 million yuan. Company of Shou Guangan Wei served as security to build official seal on the agreement.
2, additional find out, case experience " loan agreement " what creditor's rights debt concerns before department both sides is right is new affirm, it is in Liangting the country still owes loan principal 12 million yuan and sign below the circumstance that cannot pay 900 thousand yuan of interest, .
3, find out again, liang Tingguo fastens director of company of Shou Guangan Wei formerly, its exploit functionary advantage, violate the relevant regulation of company rules, below company unwitting circumstance, embezzle the name of the company, build company official seal secretly on afore-mentioned loan agreements, offer for its individual loan with company name assure.
4, borrower is faint pay off expires loan, wang Longjiang accuses to forensic requirement company of Shou Guangan Wei is assumed assure responsibility.
Controversy focus:Should be company of Shou Guangan Wei denied assume assure responsibility?
The court thinks:" company method " what adjust the 16th times is item of company interior management, company of not specific provision disobeys this clause to be offerred external assure will bring about assure the contract is invalid, be not compasses make a company assure external the effectiveness sex of the contract is mandatory regulation. Accordingly, cannot only basis " company method " the 16th regulation denies the company assures external the effectiveness of the contract. On the other hand, although cannot depend on afore-mentioned regulations only,negative company assures external the effectiveness of the contract, but also do not mean this contract because of this affirmatory and effective, its still need the relevant provision of basis contract law whether effectively to undertake making an on-the-spot investigation.
In this case, between Wang Longjiang and company of Shou Guangan Wei whether hold water effectively assure the contract concerns, depend on whether does the behavior that Liang Tingguo builds official seal form a watch to see a representative, i.e. depends on the Wang Longjiang that serves as opposite person whether " is justifiable by believe " Liang Tingguo has dealership.
From judgement of general society common sense, any companies won't be in normally ignore the condition such as source of financing of time limit of utility of loan amount, loan, loan, reimbursement, i.e. is right advocate below the circumstance of the state utterly ignorant of creditor's rights debt, easily the manager that its recruit accredit is offerred external assure. Resemble this proposal what is more,the rather that such, amount is huge advocate debt already was in cannot pay off condition, and advocate debtor just is the manager that the company recruits, believe the company can agree this manager to be in with the identity of accredit agent harder easily " loan agreement " on the individual debt that builds company official seal to be his is offerred assure. Accordingly, as the Wang Longjiang of opposite person, ought to know Liang Tingguo is in " loan agreement " on build official seal of company of Shou Guangan Wei to provide the action that assure, it is to have no right to act as agent behavior, but do not belong to a watch to see acting action.
Accordingly, did not hold water to assure effectively between company of Shou Guangan Wei and king dragon river the contract concerns, company of Shou Guangan Wei need not be assumed assure responsibility.
Case index:(2016) top magic art civilian again 207
Relevant law:" company method "
The 16th company invests to other company or offer for other assure, the regulation of rules of according to company, by the board of directors or partner resolution of plenary meeting of meeting, shareholder; The amount that company rules perhaps assures to investment and the amount that individual event invests or assure have limitation to set, do not get the limit that sets more than.
The company controls a person actually perhaps to offer for company shareholder assure, must be met via partner or resolution of shareholder plenary meeting.
The partner that the effective control person that the money before the stockholder that the paragraph provides before perhaps suffers provides controls, do not get what the money before attending regulates matter to vote. This vote the majority that holds right to vote by the other shareholder place that attends the meeting is passed.
" contract law "
Person of the 49th behavior does not have dealership, surmount dealership after dealership is stopped, perhaps sign a contract with be being ordered by procuratorial name, opposite person has reason to believe behavior person has dealership, this representative action is significant.
Solid Wu analyses:Place of preamble of no less than narrates the regulation according to company method, if company rules sets external (blame partner) assure need board of directors or partner (big) meeting resolution agrees, so the company is made external assure the resolution order that before the meaning expresses, needs to fulfill a regulation. Think in solid Wu " company method " what adjust the 16th times is item of company interior management, sex of effectiveness of and rather than sets compulsively, cannot deny the company assures external accordingly merely the effectiveness of the contract, without controversy. But also cannot understand not to have an influence to assuring the effectiveness of the contract for resolution. Only below the circumstance that does not have relevant resolution company is in assure the company that the kind that the contract builds official seal exists assures, the court ought to combine other factor to undertake integration analysis when judgement assures contract effectiveness, excluding loan nonexistent blame maintains contract effectiveness below well-meaning premise. This case, maintain creditor ill will without direct evidence, highest courtyard according to each element integration analysis illative creditor is not kindness, decide then assure invalid. Highest check counterappeal is medium in this case think even, below the case that does not have relevant resolution, creditor advocates those who be put in the flaw to assure contract effectiveness, ought to assume quote responsibility to kindness. Although have,author person is this viewpoint extreme but accord with fair principle.
Remind: Creditor ought to notice, accepting a company to offer when assuring, cannot ask the company builds official seal only, should notice the relevant resolution with true and efficient keep. Especially the borrower to custodial official seal (if this legal precedent borrower is the manager of the company) , build firm stamp to offer for individual loan assure, borrower should be strengthened more be on guard, ask its offer efficient resolution, avoid to be maintained to be not kindness by the court and produce security to avoid duty risk.
