Commercial Application Of The Appearance Of Rights Theory

Right appearance theory based on trust for the purpose of protection of civil law theory,in trading activity,act in good faith and reasonable trust by the statutory regulations or trading ideas on external elements and implementation of trading behavior and the facts bear no interest subjects is to blame for formation of appearance,behavior based on trust for the person should be protected.The applicable conditions are the existence of appearance,rationality of trust and accountability.The commercial application basis of the theory of appearance of rights lies in the consistency of value pursuit.The theory of appearance of rights embodies the legal value of maintaining transaction security,efficiency and fairness,which is consistent with the value pursuit of security,efficiency and fairness in commercial transaction relations.The theory of appearance of rights should play a role as a legal principle in adjusting the legal relations of commercial transactions,so as to make up the deficiency of commercial statutes and fill up the legal loopholes in the existing statutes.The function of commercial registration system lies in publicizing the general status of commercial subjects,so as to maintain the safety of transactions and protect the orderly conduct of transactions.In practice,the public information is inconsistent with the actual situation.The nature of business subject,the identity of shareholders and the term of investment are separated from reality and appearance.The company has internal restrictions on the legal representative's power of external representation,and the partnership agreement limits the general partner's power of external representation,and there is a discrepancy between the general situation stipulated by law and the real situation;If the business entity has completed the internal procedures for changing the legal representative and the term of capital contribution but has not changed the business registration,the registered items are inconsistent with the real ones;In the process of continuous transaction,the registration agent changes the registered items but the transaction counterpart is not aware of it,and the appearance of the transaction counterpart's trust in the process of continuous transaction is inconsistent with the actual situation,etc.In view of the above situations in judicial practice,the provisions of article 65 of the Civil Code cannot meet the actual needs,and the legal provisions of the validity of commercial registration in China should be improved.It is feasible to apply the theory of appearance of rights to protect the trust interests of the transaction counterpart.Through the demonstration of the existence of appearance,the rationality of the trust of the transaction counterpart and the liability of the registration agent,we can judge whether the transaction counterpart should be protected.In commercial behavior,expressivism is adopted to judge the effectiveness of behavior with the expressed meaning and emphasize the safety and efficiency of transaction.In the field of negotiable instrument law,"contract theory",the basic theory of negotiable instrument behavior,has deficiencies in protecting the trust interests of the third party in good faith in the abnormal transfer of negotiable instrument,and the function of the theory of appearance of rights is to make up for the deficiency of "contract theory".The Law of Negotiable Instruments does not stipulate how to protect the interests of bona fide counterparts in the case of insufficient delivery.The theory of appearance of rights can play a role as a supplementary tool for legal loopholes to meet the needs of judicial practice.Using the applicable conditions of the theory of appearance of rights to judge,when the transaction counterpart has reviewed the bill endorsement continuous,record items complete,trust is reasonable,because of the cause of the bill circulation can be attributed to the signer,the protection of the interests of the good-faith counterpart is legitimate.In bill-forgery situations,the bill is forged person liable should apply the right appearance of argument theory,in accord with trading counterpart has been continuous,endorsing the complete review paper,trading counterpart trust signature is real,is fake people be imputation applicable conditions,are fake people undertake the bill duty with rationality.In the case of alteration of negotiable instruments,there is no statutory basis for the liability of the person who has given substantial opportunity for alteration,and there is a loophole in Article 14 of negotiable instruments Law.In this case,applying the theory of appearance of rights can make up for the deficiency of statutory law.According to the judgment of applicable conditions,the counterpart of the transaction is in line with the consideration of the protection of trust interests,and the signatory who has something to blame for the alteration of the bill cannot defend the alteration of the bill to the holder.In the field of securities law,it is not the optimal choice to apply the constitutive elements of civil liability for false statement of securities to the constitutive elements of civil liability for tort.From the perspective of consistency of value evaluation,the theory of appearance of rights can provide ideas for solving the disputes of false statement of securities.In the creditor's rights transfer system,the first half paragraph of the second paragraph of Article 545 of the Civil Code does not stipulate the conditions that the third party in good faith should meet,so the theory of appearance of rights can be applied to judge the conditions that the third party in good faith should meet.Creditor's rights stipulated in China statutes did not see table transfer case,right appearance theory can be applied to the creditor's rights without transfer or assignment is invalid,the debtor is based on trust the other party has the creditor's rights to receive permission,document of title to the formation of the creditors to appearances of imputation,the holder of the debtor to the table to see default behavior can achieve the legal effect of debt repayment.In judicial practice,there are situations in which the theory of appearance of rights is applied to explain the law when dealing with the dispute of execution objection.When the executor applies for additional shareholders as the subject of execution,there are no provisions in written law on whether additional shareholders within the term of investment can be added,shareholders with conflicting registration terms of investment,shareholders before the term of investment to transfer the equity and assignee as the subject of execution,so there are disputes in judicial practice.The theory of appearance of rights has applicable space in the above cases,which can make up for the deficiency of statutory provisions.This paper holds that when the transaction is completed and the company decides to extend the subscribed period of a shareholder and change the registration,the shareholder can not use the interest of the extended period of capital contribution to oppose the creditor's trust interest of the original period of capital contribution.Where there is a conflict in terms of capital contribution registration,the creditor shall support the claim that the shareholders are required to perform their capital contribution obligations due to the expiration of a publicly publicized registered capital contribution period;If the term of capital contribution has not expired until the transfer of equity,the assignee whose business registration has been changed may be added as the person subject to execution.In equity as a target,the dormant shareholders by an outsider execution objection lawsuit by money claims application execution is found in the investigation of the property of the person subjected to execution,there is no equity trading behavior,do not accord with the theory of right appearance for the premise,the judicial practice in right appearance type theory is suitable for this kind of case is the misuse of the theory of the right to look.Appearance in this paper,an overview of rights theory in the development of the civil law countries,defining the connotation and characteristics of rights theory appearance,typed right appearance theory applicable scope,theory of the appearance of rights argument in the commercial registration,in the field of commercial behavior,enforce the applicable method,explain the theoretical foundation position in commercial law theory of the appearance of rights,expected benefit of our country's commercial law basic theory research and the interpretation of the law applicable.