Study On The Transformation Of Legal Representative System Of China

Taking the transformation of legal representative system of China as research object and basing on social change in China,upon reflection of the reasons for the development of the system,this paper puts forward with its ought-to-be model and explores specific systems suitable for the transformation of legal representative from multiple perspectives of external orientation,internal orientation and judicial application.Through text interpretation,this paper dissects normative constitution and operation effect of legal representative system,and summarizes control type of legal representative system in China.The formation and development of this type of legal representative system has its unique historical and systematic reasons.To strike a balance of the control over state-owned assets and achievement of enterprise independence,the state firmly grasps selection of legal representatives and fully allocates their legal functions and authorities.However,control type of legal representative system has not achieved initial normative goal of boosting business dynamism,but caused a great deal of anomies.Hence,this paper suggests the transformation from control type of legal representative system to the judge type.The judge type of legal representative system has undergone transformation and exploration,in coincidence with expectation of group law in terms of necessity and feasibility.First,judge type of legal representative system changes from solution of external relations between legal person and trading parties,between legal person and the state,to solution of relations between legal persons,between legal person and its members,between legal person and others and between legal person and the state.Second,it is of necessity to adopt judge type of legal representative system.Interest measurement can solve heterogeneous interest conflicts and fill legal loopholes generated by conflicts between historical legacy and needs of the times.Finally,the judge type of legal representative system is feasible.Presently,China basically has judgment basis and means necessary for judge type of legal representative system.In short,requirements such as outside and inside system needs and external supporting conditions have been satisfied for the transformation from control type of legal representative system to the judge type.In response to the establishment of normative pattern of judge type of legal representative,internal orientation of representation needs adjustment.Through summarizing experiences of exercise of representation in foreign jurisdictions and China,this paper generalizes “conference mode”,“business executor's responsibility mode” and “conference mode or business executor's responsibility mode”,reflecting limitations on the exercise of representation independently chosen by legal persons in comparison with legal representative system in our country.This paper proposes that internal orientation of judge type of legal representative should be logically based on autonomy.Legal persons have their own rights to decide appointment or removal of legal representative,scope and manner of the exercise of representation,and settlement of internal disputes over representation.For loss caused by legal representatives to others during performance of duties,legal persons also have right to independently decide whether to claim compensation from legal representatives at fault.Corresponding to the establishment of normative pattern of judge type of legal representative,external orientation of representation also needs being adjusted.The General Principles of Civil Law adopts the special agency theory to construct relationship between legal person and legal representative.As special agent,legal representative is naturally granted general and unrestricted representation on the basis of their registered duties.The intended limitation of representation shall not be against bona fide counterpart,and the scope of general authorization of representation can be also restricted by law through authority of legal person.Ultra vires agency act should be subject to agency law and be incorporated into the civil law system.Externally,judicial application of judge type of legal representative can be divided into general rules and special rules.Unless the exercise of representation goes against trade security and public interest,unrestricted representation and apparent agency are general rules for solution of external disputes over representation.However,when general authorization of representation is restricted by law,ultra vires agency act should be regulated by agency law.The unauthorized agency system can be used to restrain acts of legal representative contrary to the interests of legal person.Internally,judicial application of judge type of legal representative system should be preconditioned with legal person autonomy.Articles of incorporation or resolutions of competent organ of power are employed as judgement standard to deal with internal dispute over representation.Judicial intervention may overcome the limitation of legal person autonomy,to the extent that the intervention does not violate law,trade security and public interest.The expected creativity of this paper lies in the setting of research approach,specifically including the following three aspects.The first is the conformity to methodological individualism.The judge type of group law acknowledges the legitimacy of individual profit-seeking motive,entrusting individuals with independent interests,guiding and encouraging individuals to maximize their own economic interests.The second is the embodiment of social change and interest differentiation.With attempt to introduce background of China's social structure changes into study of civil law,taking the change from a homogeneous society with a single national dimension to a heterogeneous and multi-dimensional society since the reform of state-owned enterprises as macro background,this paper constructs the realistic context where legal representative system is discussed and explored.Additionally,in this paper,social structure and its differentiation are set as the basic premise of institutional criticism and institutional construction.The third aspect is the adoption of interest measurement method.By applying the interest measurement method to solve conflict of heterogeneous interests under interest hierarchy,this paper provides concrete and realistic solutions to the problems present in the study of legal representative system and judge type of group law in our country.