The Insight Of The Bill Apparent Agency

The payment, settlement, credit, financing and other economic functions of bill make its role important increasingly in the commodity economy society. The natural advantanges that are the expansion of disposing capacity of subjects and making up for the lack of disposing cpacity of subjects of agency make commercial subjects to gain more business opportunties. When bill combines with the agency, the two brings out the best in each other: on one hand the combination of bill and agency makes the bill functions to play a greater extent; on the other hand it makes the superiority of agent system to be embodied more widely. However, negotiable instruments behavior is different from the general civil legal acts, because bill has the special qualities such as non-causation, strict abidance by the literal meaning and adherence to the pattern. If bill agency doesn't consider these special qualities, it not only can not keep bill functions getting better use, but also will influence the realization of its functions.The Negotiable Instruments Law of China does not make express provisions which refer to the bill apparent agency, but in practice there are practical requirements of bill apparent agency. In order to solve this problem, scholars generally agree that negotiable instruments behaviour can be directly applied to the relevant provisions of Civil Law about bill apparent agency. However, such direct application without analysis will lead to insurmountable difficulties. Therefore, from studying the basic theory of bill apparent agency, this paper deeply analyses the compositon and legal consequence of bill apparent agency and discusses the limitation of the analogy of bill apparent agency by historical analysis, empirical analysis and value analysis method. The full text is divided into four parts.The first part elaborates basic theory of bill apparent agency, including semantic analysis theory, theoretical foundation, rational analysis of bill apparent agency and predicament due to the lack of bill apparent agency of Bill Law. Bill apparent agency refers to the legal system that although the actor does not have the powers of the agent, the bona fides third party has good reason to believe the negotiable instruments behaviour is authorized and acts with this actor, thus the legal consequence is directly attributable to the principal. The theoretical foundation of bill apparent agency is the right appearance theory which provides legitimacy foundation for the good protection of the reliance interest of the bona fides third party. Although the Negotiable Instruments Law of China does not expressly provide bill apparent agency, owing to negotiable instruments behaviour attaching importance to the right appearance and apparent agency contributing to bill negotiation and other reasons, scholars generally agree that apparent agency regulations of Civil Law apply to negotiable instruments behaviour. However, due to special qualities of negotiable instruments behaviour such as non-causation, strict abidance by the literal meaning and adherence to the pattern, the direct application of provisions of Civil Law will result in determining the nature of negotiable instruments behaviour in disguised form, difficulties in legal application and the indeterminacy of the scope of protection of bona fides third party. Therefore, only admitting bill apparent agency can not solve all the practical problems, the Negotiable Instruments Law should explicitly stipulate bill apparent agency.The second part discusses the constitutive requirements of bill apparent agency. In theory, the constitutive requirements of bill apparent agency have single factor theory, double factors theory and distinguishing theory. In the point of view of promoting bill negotiation, reflecting the commercial law giving priority to efficiency, comprehensive coverage of the situation of apparent agency and conforming to the objective trend of the right appearance constitutive requirements theory, this paper agrees with single factor theory. The single factor theory is subdivided into subjective and objective factor. In addition, whether the scope of bona fide third party involves the third obtainer has been the focus of controversy among scholars, so it becomes important and difficult points of this paper. Withal, there mainly are negative, positive and distinguishing theory in theory circle. This paper adopts distinguishing theory method of analysis, in consideration of whether the direct counterpart constitutes bill apparent agency and the third party in good faith or not, to analyze the scope of the bona fide third party of bill apparent agency. When bill apparent agency happens to the direct counterpart and the third party has good faith, bill apparent agency happens to the direct counterpart but the third party is malicious, and bill apparent agency does't happen to the direct counterpart but the third party has good faith, the third bill obtainer has the right to claim the bill rights from the principal. Only bill apparent agency doesn't happen to the direct counterpart and the third obtainer is malicious, the third obtainer has no right to claim bill rights from the principal.The third part expounds the legal consequence of bill apparent agency. First, the direct counterpart, after the establishment of bill apparent agency, has the right to claim bill rights from both the principal and the unauthorized agent. Second, when bill apparent agency happens to the direct counterpart constitutes, the third obtainer also has the right to choose subject of legal responsibility because he can succeed to the direct counterpart's bill rights. Moreover, when apparent agency does't happen to the direct counterpart, but because of the protection of the bona fides third party from the right appearance theory, the bona fides third party has the right to choose subject of legal responsibility. Third, when the principal was chosen to be the subject of legal responsibility, he has the right to claim compensation against the unauthorized agent if the principal suffers a loss. Last, when the unauthorized agent was chosen to be the subject of legal responsibility, he becomes the bill owener. In addition, this part also clears and definites that the responsibility of principal and unauthorized agent is coincident rather than joint.The fourth part analyse the limitation of the analogy of bill apparent agency. The issues which are related to the bill apparent agency are the principal's responsibility in special form of bill apparent agency and the responsibility of the person who was masqueraded in the bill forgery. Because the principal doesn't sign his name on the bill in the special form of bill apparent agency, academics explain the negotiable instruments behaviour in the special form in the bill forgery. That is to say, the special form of bill apparent agency belongs to one situation of bill forgery. Whether or not the special form of bill apparent agency applies to the rules of bill apparent agency is controversial. There are negative, positive and compromised theory among scholars. This paper agrees with the compromised theory which insists that the counterpart's reliance interest should be protected owing to the right appearance theory rather than the analogy of bill apparent agency. In other words, in bill-forgery occasions, the person who is masqueraded has not to take the responsibility, but when the special form of bill apparent agency occurs and the bona fides third party has good reason to believe that the agent has the right, the principal (the person who is masqueraded) should undertake the responsibility so as to protect the reliance interest of the bona fides third party. However, this kind of protection results from the right appearance theory rather than the analogy of the bill apparent agency.