法定代表人越权代表行为效力及责任承担研究

The Validity of the Act of Exceeding the Authority of the Legal Representative and the Assumption of Liability

摘要: 法定代表人作为法人对外活动的唯一代表，其高度集中的代表权限易引发越权代表问题，亟需从行为效力与责任承担两方面构建规范体系。厘清代表与代理的关系，对构建越权代表行为效力的理论框架至关重要。实际上，代表与代理具有同质性，代表制度的特殊之处在于法定代表人的概括权限与登记公示，进而塑造出较普通代理人更强大的权利外观。由此，对于法定代表人越权行为效力的认定应基于权利外观理论：若法定代表人越权但其权利外观足以使相对人产生值得保护的信赖利益时，则可构成表见代表，越权行为对法人发生效力；反之，则应准用无权代理规则，认定越权代表行为效力待定，法人可予以追认。若法人拒绝追认，唯有在其对越权行为存在过错且该过错行为与相对人损害存在因果关系的情况下，法人才需承担独立的侵权责任，以此平衡法定代表人越权时法人与相对人的利益关系。

Abstract: The legal representative, as the sole external representative of a legal entity, has highly concentrated authority, which easily leads to the problem of ultra vires representation. It is urgent to construct a normative system from both aspects of validity of the act and assumption of liability. Clarifying the relationship between representation and agency is crucial to building a theoretical framework for determining the validity of ultra vires representation acts. In fact, representation and agency are homogeneous. The special feature of the representation system lies in the general authorization and public registration of the legal representative, which creates a stronger appearance of rights than that of an ordinary agent. Therefore, the determination of the validity of the legal representative’s ultra vires act should be based on the theory of appearance of rights: if the legal representative exceeds his authority but his appearance of rights is sufficient to create the counterparty’s trust interest worthy of protection, then apparent representation may be established, and the ultra vires act shall be effective against the legal entity; on the contrary, the rules of unauthorized agency shall be applied mutatis mutandis, the validity of the ultra vires representation act shall be deemed pending, and the legal entity may ratify it. If the legal entity refuses to ratify, only when it has fault in the ultra vires act and there is a causal relationship between such fault and the counterparty’s damage, shall the legal entity bear independent tort liability, so as to balance the interests of the legal entity and the counterparty when the legal representative exceeds his authority.