On Stipulation Of Indirect Representation In Our Country

Based on the theory that it is comparison that brings about learning andabsorbing from the counterpart, the first part of the article makes acomparison on indirect representation between two law systems. There is aprominent difference in common law and civil law. Civil law system adheresto the publicity principle of representation, so indirect representation is nottreated as a real representation, and it just has the name as representation. Infact, it has been separated from the representation system, and in the realpractice and legislation, it now belongs to the factor system. It is not necessary in common law that representation adheres to thepublicity principle of representation, so it includes more types, among whichthe agency for an unnamed principle and undisclosed principal are similarto the indirect representation in civil law system. According to civil law, theprincipal does not has the right of intervention to the contract of the agent andthe third person, until the right and responsibility is transferred. In otherwords, there are two independent contracts thwart the direct legal relationshipbetween the principal and the third person before it comes into being.According to common law, based on the same contract, undisclosed principalhas the right of intervention after his or her disclosure。When the undisclosedprincipal is found by the third person, with right of selection the third personcan directly claim his or her right to the principal. That is to say, if only thereis a contract made by the agent and the third person, it gives rise to the directlegal relationship of the undisclosed principal and the third person, evenwithout the contract to transfer the relationship. The negative effect caused by the difference of representation legislation in 47two jurisdictions has become more serious in the field of international trade,so the jurists are making effort to promote the unification process ofrepresentation legislation in different countries. The second part of the articlereviews the representation legislation in The Principles of European ContractLaw and The 1983 Convention on Agency in the International Sale of Goods,from which we can find that two treaties partly keep the legislation of indirectrepresentation in civil law system, while make some substantial breakthrough in its theories, which introduces from the agency for an undisclosedprincipal in common law the limited right of election of a third person andright of intervention of principal. Because the approach to solve the problemof common law is more adaptable to meet the needs of commercialdevelopment, it takes a substantial advantage during the unification processof the two competitive law systems. The third part mainly reviews the indirect representation in the currentlaws of our country. Adopting the typical "name test", The General Principlesof Civil Law limits representation to the publicity principle. Basing on theanalysis of the application limitation clauses of Article 402 and Article 403 inContract Law, the author generally reviews the two chapters on mandatecontact and factor contract. The author takes the point of view that, on onehand, in the mandate contract, Article 402 and Article 403 recognize thatagency for an unnamed principal has the same legal effect as directrepresentation if under the certain conditions, and introduce the amendedright of intervention and right of election to the agency for an undisclosedprincipal, on the other hand, an independent chapter, is made especially forfactor contract. What is mentioned above means that Contract law in ourcountry introduces agency for an undisclosed principal, while keeps theindirect representation (factor contract), which is inconsistent with thecommon law system. We can make a conclusion that when the representation 48system in our country keeps factor, while introduces...