The Study On The System Of Agency In "UNIDROIT Principles For International Commercial Contracts, 2004"

Agent, acting as an important economic activity in international trade, still has a role not to be ignored in this global information era. For the system to regulate it, produce from the start never stopped. However, "UNIDROIT Principles for International Commercial Contracts, 1994" (Principles 94), always cited as an outstanding achievements in the professional sphere, doesn't talk about the agent, it is inevitable that can be said is a regret. But in the latest successive version, " UNIDROIT Principles for International Commercial Contracts,2004" (Principles 04) gives a more comprehensive, systematic and authoritative interpretation about agent right. In China's law system, there are some piecemeal and traditional issues about agent, comparing with the "Principles 04", it will be useful to optimize the relative issue.This paper includes four parts. The first briefly describes the background and general clauses of "Principles 04", especially about the amendment. The second will introduce the authority of agents in "Principles 04". The third part is to analysis the consistence and difference between"Principles 04" and the provisions of China law system especially in the authority of agent. The fourth part is mainly focus on the liability of agent acting without of exceeding its authority.In the context of globalization, the authority of agent is not suitable to everywhere. So it must take into account various factors to establish the new principle. The adjustment of Authority of Agents is only applied to affect the legal relations between the agent and the third party. That means the adjustment focus on the external relations between the agent and the third party, not on the internal relations between the agent and the principal. According to the China civil law system, the provisions of agent contained in"General Principles of the Civil Law of the People's Republic of China"and"Contract Law of the People's Republic of China", such as entrusted agency, statutory agency and appointed agency, are much more broader than "Principles 04".About the determination and the scope agent authority, "Principles 04" provides not only with the authorization of agents can be expressed, it may also be implied. In another words, no any special restriction authorized to the agent. In the China Civil Law 63-65, the authority of agent may be applied in the written or oral form, which is commissioned limited in two forms. The summarized expression of "Principles 04" will be free to contain all sorts of possible new mandate for the future, it's better to learn it on the forward legislative perspective.As of "Principles 04", under the right circumstances, the agents have full power to achieve the purpose of this mandate. That means how broad authority the agent granted, how broad scope the agent can do business by his own. The strict restriction of China provisions is too limited to the authority of agent. "Principles 04" is an advanced prototype for our future research and reference, and then be used to be a relatively sound legal environment.According to the termination of authority, "Principles 04" describes as following. First, whatever the grounds for termination of the agent's authority, in relation to the third party termination is not effective unless the third party knew or ought to have known of it ,in the absence of such notice it will depend on the circumstances of the case whether the third party ought to have known of the termination; second, even after termination of the agent's authority the circumstances of the case may make it necessary for the agent to perform additional acts in order to prevent the principal's interests from being harmed. In our system the enumeration method is adopted, as for the scope.In the third part, this paper tries to distinguish the agency disclosed and agency undisclosed. "Principles 04" is apt to the civil law system, the main standard is about the third party whether knew or should have known of the status of the agent. As to whether an agent to act on behalf of himself is irrelevant. Chinese law adopts a more flexible attitude, if the third party is aware of agency status, the agent must be bound by himself.This part also differentiates the conflict of interests and the sub-agency. The Chinese law has a list; "Principles 04" tries to summarize the staff. The restriction of right of the party is also different. "Principles 04" is more open than Chinese law system about the sub-agency. From the perspective of efficiency to boost the business, it's better not to restrict agent any more. In the last part the main issue is about the agent acting without of exceeding its authority. Generally speaking it's not quite different between "Principles 04" and Chinese law system. But a piece principle about agency by estoppel is deserved to be more specifically discussed, particularly the prohibition of inconsistent behavior. It's really a good chance to manipulate the principle to actual work.Another issue is about the ratification of the agent acting without of exceeding its authority. "Principles 04" thinks of ratification, as the power of attorney granted, without any form restriction, whenever in principle, the part can talk at any time. The Chinese system also talks about the same issue, just not completely comprehensive. Whatever, "Principles 04" is a valuable reference to formulate the civil code in the future.