| This thesis discusses the mandate and agency relations in the foreign trade agency by reviewing the concepts and theories of the contract of mandate and agency in Common Law and Civil Law systems adopting the methodology of comparative law, put forwards the solutions for the problems in the practices of foreign trade agency. The thesis composes of three parts, namely the prelude, the main part and the conclusion. The main part is divided into three chapters: chapter one "The Nature of Foreign Trade Agency", chapter two "The Practices of Foreign Trade Agency", chapter three "The Impact of Contract Law on Foreign Trade Agency".Chapter one "The Nature of Foreign Trade Agency". Why the foreign trade agency system adopts the term of "agency"has its special historical background. Form the provisions of the Provisional Regulations, the agency in the foreign trade agency goes beyond the scope of the General Principles of the Civil Law of the People's Republic of China. Generally, the foreign trade agency should be mandatory agency, but the foreign trade agent can negotiate the contract in his own name in some cases. How to understand the agency in foreign trade agency practices is a problem frequently encountered in this kind of disputes. Since all above, this chapter compares the concepts of agency in the two legal systems, and concludes that foreign trade agency is a form of business practice in our foreign trade field, it can not be classified as the agency of the Code Law or the agency of Chinese Civil Law, or an implantation of the agency of the Common Law in Chinese law. Chapter two "The Practices of Foreign Trade Agency". The principal and agent relations in the foreign trade agency are imbalanced in the areas of rights and obligation, the division of risks. The focus of the concerns is that the company that has the foreign trade qualification can only use his name in signing the contract with foreign party when handling the foreign trade agency business, as the party of the contract with the foreign party, the company that has the foreign trade qualification assumes the obligation of the contract, and makes claims and compensations of the contract, especially in litigation or arbitration. The position of the company that has the foreign trade qualification is that he bears all the risks in the contract with the foreign party, while receives commission for only one to three percentage of the amount of the contract. On the other side of the agency relation, the domestic principal is not a qualified party of the import/ or export contract, so he can not join the contract to sue the foreign party when the foreign party breached the contract, while has to bear the final result of breach. The above-mentioned situation affects the enthusiasms of the parties in the foreign trade agency. Chapter three "The Impact of Contract Law on Foreign Trade Agency". The contract of mandate and the agency are different legal relations by their nature. The contract of mandate stipulates the contractual rights and obligations of the mandator and mandatory; on the other side, the agency of mandate specifies the authority of the agent and the legal attribution of the conduct of the agent. The analysis of their relation is helpful for the understanding of the relation between the authority of the agent in foreign trade agency with the mandate contract, and also helpful for the clarification of the duties and obligations of the parties. The article 403 of the Contract Law introduces the system of the principal's right of intervention and the third party's right of election. The circumstance in which the mandatory acting in his own name in negotiating contract with foreign party in the foreign trade agency satisfies the conditions of the system, the introduction of the system enables the principal and the third party to participate the contract, with this method facilitate the deals and reduce the cost of transaction. From the view of comparative law, the system comes from the common law's pr... |
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