On The Scope Of Compensation Liability Of The Unauthorized Agent To The Counterpart

In the absence of ratification by the principal and the absence of apparent agency,the opposite party may request the powerless agent to bear the liability for compensation.In this regard,from the General Principles of Civil Law to the Contract Law period,the law only stipulates that the powerless agent should bear the responsibility,but does not specify the content of the responsibility.In contrast,the General Provisions of the Civil Law and the Civil Code,Article 171,paragraph 3 and paragraph 4,have made specific provisions on liability: for the bona fide counterpart,the powerless agent shall bear the responsibility of performance or compensation;The non-bona fide counterpart shall bear the liability according to the fault.The current rules,based on whether the counterpart is in good faith as the distinction standard,provide for a significantly different range of liability,but the specific difference is not clear.The model of determining the scope of compensation liability is the logical starting point for studying the scope of compensation.The comparative law generally determines the scope of compensation based on the subjective state of the perpetrator or the relative person,and forms the doer-centered model and the relative person-centered model.The doer-centered model determines the scope of compensation according to whether the doer is at fault or not and whether he provides security or not.The relative person-centered model determines the scope of compensation according to the factors such as whether the relative person is at fault and the degree of fault.Although the two models start from different interest points,they do not only focus on unipolar interests,but realize the value goal of the balance of interests by constructing the dynamic linkage relationship between subjective status-compensation range.The law of our country belongs to the mode of relative people-centered.If it is strictly based on the text,it attaches too much importance to the interests of the relative people and neglects the interests of the doer to some extent,which leads to the imbalance of interests.Based on the implementation of the principle of two-way subject legitimacy and the comparison of extraterritorial law experience,the interpretation should take the balance of interests of the counterpart and the doer as the starting point,follow the normative logic of the Civil Code to distinguish bona fide and non-bona fide counterpart,and determine the scope of compensation through the dynamic interaction relationship of "subjective status-compensation scope".Article 171(3)of the Civil Code provides for the liability of an powerless agent to a bona fide counterpart.The subjective state of the relative person should be divided into good faith and non-good faith with the criterion of "no gross negligence".On this basis,the state of good faith is further subdivided into two types: "no fault" and "light fault",in order to give the protection of performance interest and trust interest respectively.According to the subjective state of the doer,whether the doer knows the lack of agency power should be regarded as the standard,and the two types of "knowing" and "not knowing" should be distinguished,and the compensation liability of performing interests and trusting interests should be imposed respectively.Based on the dynamic connection of "subjective status-compensation scope",if the relative person is not at fault,no matter whether the actor knows the lack of agency,he should compensate for the performance interests;If the opposite party is negligent,the doer should compensate the performance interests in principle when he knows it,and the trust interests when he does not know it in principle,and allow the judge to make discretion according to the principle of fairness.In addition,the principal’s liability will also affect the liability of the powerless agent.When the principal assumes the apparent agency liability,the actor shall not be liable to the opposite party.When the principal bears the liability for the fault,the actor and the principal bear proportional joint and several liability,and the principal may recover from the actor for more than half of the share within the scope of joint and several liability.The part that the principal cannot recover can make the perpetrator realize "de facto reduction of responsibility".Article 171(4)of the Civil Code stipulates that the powerless agent shall be liable to the non-bona fide counterpart,and the scope of compensation shall be determined jointly according to the faults of both parties.The fault of the relative person can be divided into two types: "intentional" and "gross negligence".The fault of the perpetrator has a more flexible form of expression,and the reprehensibility of the perpetrator’s fault is higher than that of the counterpart.The upper limit of the scope of liability should be based on the principle of reliance interest,with the exception of performance interest.Based on the dynamic link of "subjective status-compensation scope",if the relative party has gross negligence,the actor shall share the damage within the range of 0-100% according to the fault;If the counterparty knows clearly,the actor shall share the damage within the range of0-60% according to the fault,and on this basis,the liability shall be properly adjusted in combination with the factors that can affect the fairness of the case in the transaction.In addition,the principal’s liability will also affect the liability of the powerless agent.If the opposite party is guilty of gross negligence,the actor and the principal shall bear proportional joint and several liability,and the principal may recover more than half of the share within the scope of joint and several liability from the actor.The part that the principal cannot recover can make the perpetrator realize "de facto reduction of responsibility".Only the perpetrator shall be liable for compensation to the other party when the other party is fully aware of it.The scope of liability of the powerless agent to the opposite party includes performance interests and trust interests.For the determination of the amount of compensation for the performance of the interests of the powerless agent,the principle of non-differentiation should be followed,and the basis calculation method,the difference calculation method and the superposition calculation method should be comprehensively used to make the counterpart in the same position as when he had the right to act as an agent.As an alternative remedy for the performance of compensation for damage to interests,the performance responsibility is a statutory special responsibility that is different from the contract responsibility.The actor is not a party to the contract when he assumes the responsibility for performance,but he may enjoy some contractual rights.The core of determining the amount of compensation for the damage of trust interests of the powerless agent is to clarify the amount of property interests and opportunity interests,and the key is to prove that there is a causal relationship between the damage of interests and the counterpart’s trust in the powerless agent.For this reason,we can reduce the requirement of causality from "necessity" to "probability" by means of methods such as probability balance,so that causality can be proved more easily.In addition,the amount of compensation for damage to trust interests shall be limited by the performance of interests and shall not exceed the interests that the opposite party may obtain at the time of ratification by the principal.