| Former foreign trade agency in China is the product f planned economy, which is put forward to solve the problems in foreign trade procurement. Based on monopolistic management of foreign trade, it does not measure up to the rules of fair trade, free competition and non-discrimination of WTO. The prevalent agent manner or foreign trade corporation is to engage in import and export business in their name after obtaining authorization. Regulated by Interim Regulations Concerning Foreign Trade Agency, the manner is contradicted and conflicted with those in General Principles of the Civil Law, which results in the question towards its legal effect.Nowadays, there is a large difference between two main law systems in terms of the theoretical foundation and judicial practice of the Law of Agency. The Continental Law regards the Theory of Separation as theoretical basis with the basic classification of direct agency and indirect agency. The agent of the former does not assume personal liability to the third party, which indicates the principal shall be liable. While the legal effect of the latter shall first take effect towards the indirect agent, then transfer to the principal afterwards according to the internal relationship. The commission agency is representation of indirect agency in Continental Law System. It only refers to two relationships, including that of the principal and commissioner as well as of the commissioner and the third party respectively, regardless of the complex internal and external relations among the principal, agent and the third party. Anglo-American Law of Agency is established on the Theory of Identity, including agency of named principal, agency of unnamed principal and agency of undisclosed principal. The principal of agent of named principal shall be responsible for the contract, while the agent does not assume personal liability. American law regards the agent of agent of unnamed principal should also take on contractual responsibility while British law has both the case of the agent of agent of unnamed principal bearing contractual liability and that of the principal of agent of unnamed principal bearing contractual liability yet the agent not assuming personalliability. The principal of the agent of disclosed principal can perform the right of intervention. However, if the performance is contradicted with the express terms and implied terms in the contract, or the third party attaches great importance to the agent himself, the right of intervention can not be fulfilled. After finding the principal, the third party enjoys the right of election, which means he can choose either the principal or the agent to assume the liability. Comparing the indirect agency in the Continental Law System with the agency of disclosed principal in Anglo-American Law, we can conclude that each has both advantages and disadvantages.Convention on Agency in the International Sale of Goods absorbs the quintessence from Law of Agency of the two Law Systems, dividing agency into the agency of directly binding the principal and the third party as well as that only binding the Agent and the third party. Article 12 of the agency directly binding the principal and the third party makes clear that if the third party knew or ought to have known that the agent was acting as an agent, the principal shall assume the contractual responsibility while the agent shall not be liable. The agency covers the direct agency in the Continental Law System, as well as that of both named principal and unnamed principal in Anglo-American Law. Article 13 is related to the agency only binding the agent and the third party, stipulating that when the third party neither knew nor ought to have known that the agent was acting as an agent, his acts shall bind only the agent and the third party. Under certain conditions, the principal shall be entitled to the right of intervention, which uses for reference from the agency of disclosed principal in Anglo-American Law System. However, the conditions stipulated in the Convention towards the right of intervention for the principal as well as the right of election for the third party are far more strict than those in British-American Law of Agency.In 1999, Article 402 and Article 403 in China Contract Law drew lessons from Convention on Agency in the International Sale of Goods, redesigning the foreign trade agency. Article 402 establishes the regulation on the agency of the third party knowing the relationship, which is of a narrower scope than Article 12 in theConvention and excludes the agency in the name of principal. Article 403 makes the regulation on the agency of the third party not knowing the relationship, basically copying the key content in Article 13 of the Contention. As new foreign trade agency concerns the absorption of British and American laws as well as the coordination with China's inherent theories in Civil Law, there exist many problems no matter in the regulations or the application of law. Therefore, we should further to make specification in the Civil Law Code afterwards to make it more exercisable. |
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