A Study On The System Of Agency

Since all beneficial absorption and reference could stem from comparison,this thesis tries to conceive and construct the specific systems of agency in ourcountry on the comparison between the agency systems in two law systems,i.e., the Anglo-American Law System and the Continental Law System.The agency system originates from the ancient Rome, thus theContinental Law System inherits the characteristic of strict formalism ofancient Rome. The agency in the Anglo-American Legal System originatesfrom common law and its agency system is established in commercial practicestep by step on one case and another. First of all, Chapter One introduces theorigin of agency systems in the Continental Law countries and theAnglo-American Law countries respectively. Due to the different origins, theagency systems in the two law systems develop in different way. Followingits thinking mode of constructive rationalism, the Continental Law Systemtracks on an abstract way, creating a series of highly general conceptions andestablishing a complete and logical law theory on the basis of theseconceptions. The Theory of Differentiation, which is the theoretical foundationof the agency theory in the Continental Law System, is the reflection of thisabstract way in agent system. The starting point of this theory is to consideragency an action which could burden the others with the legal result, but it isin conflict with the old principle, "no one should sign any contracts for others",so the Continental Law creates and emphasizes on the agency which could letthe third party bear the liabilities of the contract. Following the thinking modeof evolutionist rationalism, the Anglo-American Law System tracks on anconcrete way, starting from experiences in stead of logic, never trying to creategeneral concepts or construct embracive logical systems. Its theoreticalfoundation of agency is the Theory of Identity, which reflects an intuitionisticand visual thinking mode. According to this theory, the principal is equal to theagent. In short, it refers to "it is regarded done by the principle himself if hehas it done by the others". Referring to the Theory of Identity, since the agenthas gained the confidence and accreditation, his actions within the accreditingscope shall be considered the same as the principal's and the agent actiontotally lies in the commission. The difference in thinking mode and theoreticalfoundation leads to their different understanding of the conception of agency.Chapter One makes a comparison between the conceptions of agency in thetwo law systems and then introduces the relationship between the conceptions,which could be regarded as the prediction of the amalgamation of the agencysystems in the two law systems.The above differences bring about the difference in the construction ofagency system. Chapter Two researches from the angle of relationship amongthe involved three parties, i.e., the relationship of agency power between theprincipal and the agent, the relationship of agency action between the agentand the third party and the relationship of agency effect between the principaland the third party. The relationship of agency power is the embodiment ofaccreditation and acceptability between the principal and the agent in privatelaw, the key of which is the agency power. The scholars held different ideas ofthe character of the agency power. This thesis analyses and comments onevery doctrine and then puts forward his own notion: the agency power isactually is a kind of "right"; to admit it is right has not only the practicalmeaning of protecting the principal's legal interest and promoting thedevelopment of agency actions, but also the theoretical meaning ofstrengthening people's sense of rights and readjusting the conception of "right"in civil law. The dispute on the character of agency power stands for thethinking tradition of the Continental Law and it is more meaningful in theorythan in practice. The two law systems have also different knowledge on theauthorization of agency power. In the Continental Law System, authorizationaction is a unilateral act. Starting from the principle of civil juristic act, theauthor concludes that civil juristic act is the legal abstracting of all the actswith declaration of will, while authorization is a second abstracting of all thecivil juristic acts with declaration of intention to authorize. As to whetherauthorization is of independence and abstract, the author indicates thatauthorization exists objectively, so no matter it is abstract or not, it is of nodissent that the authorization of the principal to the agent exists independently.The author expounds the advantages and defects of the doctrine ofcausativeness and the doctrine of abstraction and points out the greatdifference between the causativeness of juristic act of real right and thecausativeness authorization, which lies not in causativeness itself, but in itsprecondition -independence. The Anglo-American Law System holds thenotion that the authorization of agency power is of no independent legalmeaning. The agency power comes from authorization in fact, authorization byestoppel and authorization by ratification. This thesis expounds this issue bycombining the relationship of agency action and the relationship of agencyeffect. The thesis narrates direct agency and indirect agency in the ContinentalLaw System and the disclosed agency, undisclosed agency and the agencywith unopen principal. The formalism of the Continental Law in jurisprudencelogic expels undisclosed agency and agency with unopen principal, and limitsit to disclosed agency, while the substantialism of the Anglo-American LawSystem in jurisprudence logic expels any limitation. The difference of theagency systems in the two law systems originates from their different way ofdevelopment.The last chapter shall be the setting position of the previous theoreticalresearch. Not only the agency systems in the two law systems couldamalgamate in theory, but also such example has showed up in practice, suchas the United Nations Convention on Agency for the International Sale ofGoods(UNCAISG). How to construct the agency system in China depends onrelative theory and legislation. The author tries to perfect our agency systemby referring to the theories of the two law systems. On the basis of analyzingArt.402 and Art.403 of The Contract Law, the author affirms the introductionof undisclosed agency system into China, at the same time, the author oppugns...