Study On Several Issues Of Unauthorized Agency

Nowadays, unauthorized agency emergences more and more frequently in judicial practice, with commodity economy developing increasingly. Based on theories and practices home and abroad, this thesis intends to make a deep discussion on several issues of unauthorized agency in order to perfect its legal system and make a good application in justice. The thesis is constructed into four parts. Part One is an introduction part which gives a brief summary to the basic concept of unauthorized agency and its classification. Traditionally, unauthorized agency is usually classified into two categories: unauthorized agency in a narrow sense and agency by estoppel. Part Two and Part Three are important parts of this thesis. Based on the researches by the scholars home and abroad, this thesis gives a detailed study on the important and difficult issues of unauthorized agency system. These are the issues in part Two discussed as follows. Problem One is a problem about the third party's subjective minds in unauthorized agency in a narrow sense. In this part, the thesis analyzes in detail that as for the third party's subjective minds, which mind could constitute unauthorized agency in a narrow sense, goodwill, mala fide, deliberate intention or fault? And refutes the idea sharply that only the third party is in good faith could unauthorized agency in a narrow sense establish. Problem Two is a study of the principal's right of ratification. This part gives a detailed discuss about subject,object and time limit of ratification. Concerned with the time limit of ratification, this thesis holds that the law shouldn't stipulate legal time limit, on the contrary , it should be treated differently under different circumstances. If the counterpart exercises the right of exhortation,he could decide the limit; Otherwise,the principal should exercise his right in reasonable time limit. Problem three is about the third party's rights of exhortation and revocation. This thesis holds that the third party should be entitled to the rights of exhortation and revocation, and exercise of rights should satisfy essential conditions. For example, the rights should be exercised before the principal exercising his right of ratification; The third party should give the principal a reasonable and explicit reply term; Only the third party is in good faith can he have the right of revocation etc. Problem 4 discusses the differences between unauthorized agency in a narrow sense and spontaneous agency. This thesis gives a detailed study on their differences in the following aspects, such as capacity for civil conduct, striving for the benefits for other people, mainly civil relation concerned. The author thinks that if one action can both satisfy the constitutive requirements of unauthorized agency and spontaneous agency, the dispute concerned with the action could be solved by both systems. The last problem of the second part is the problem that the unauthorized agent undertakes the civil responsibility. This thesis claims to the idea that the unauthorized agent's responsibility is a special responsibility. Concerned with constitutive requirements, the counterpart should be in good faith, and the unauthorized agent should bear compensation responsibility, rather than optional responsibility. As for the extent of the compensation, this thesis asserts that the law should accord to the unauthorized agent's subjective to certain the scope: when the unauthorized agent has goodwill, he only compensates the third party's trust benefits; When he is malicious, he should compensate the third party's implement benefits. Part three discusses some problems of agency by estoppel which mainly talks about two problems. One is a problem about whether the principal's fault is one of the constitutive requirements of agency by estoppel. Here, the author agrees with the idea that the principal's fault should be one of the constitutive requirements of agency by estoppel, and refuted sharply" the single important item theory", thinking that " the single important item theory" is regardless of fair principle. The principal's fault should be one of the constitutive requirements of agency by estoppel. And for protecting the interest of the counterpart, the law can adopt constructive fault system in order not to aggravate his burden of proof. The other problem is about thethird party's option of subject of responsibility. This thesis talks about the restriction of the option and the unauthorized agent whether can lay claim to establish agency by estoppel to hold back the third party's exercise of the option. The author thinks that the law should limit the third party' option of time, way, number of times...etc, and if the unauthorized agent is without fault, he could lay claim to establish the agency by estoppel. In part four, namely in the last part, this thesis gives a detailed study on the shortage of unauthorized agency system of our country currently and talks about the viewpoint on how to perfect it. Unauthorized agency system of our country is too brief compared with other nations and regions, and lacks necessary stipulation, such as the third party's rights of exhortation and revocation...etc. The author puts forward that the civil code of the future should be perfected as follows :on the aspect of unauthorized agency, the author thinks that the law should entitle the counterpart to the rights of exhortation and revocation; Should stipulate the conditions of the third party's undertaking responsibility,constitutive requirements,responsibility and the extent of compensation on the lawmaking. As for the agency by estoopel, this thesis puts forward that the agency by estoopel system should be established in the civil code, and its concept and constitutive requirements should also be stipulated. Entitle the third party to the right of option; Stipulate legal consequences of agency by estoopel and the relationship between the inter parties definitely. Perfect the unauthorized agency of our country to promote the civil agency system.