Fault Research In Apparent Agency

To safeguard the interests of the third parties and the security and stability in trade activities the article 49 in<Contract Law>has established the Apparent agency system in the form of legislation for the first time. But this provision is so brief which leads to theoretical disputes about the contents and the confusion in trial Practice, of which the most prominent is the subjective constitutions of Apparent agency. To avoid the range of application of Apparent agency system too broad then damaging the interests of principal, the Supreme People's Court enacted<Guidance for trying cases about commercial contract disputes in the current situation >.This guidance regulated that counterpart must be goodwill without negligence and pointed out that many factors should be taken in to consideration to check out whether the counterpart is goodwill without negligence. But many provisions are still unclear. On the basis of studying on negligence of Apparent agency Home and abroad, this article do a full research in the aspect of constitutions and responsibilities of Apparent agency in order to protect the interests of every party symmetrically.In the aspect of Constitution, a negative Constitution should be established, which is the agent illegally obtaining the right and making use of the right to seek profits. As long as the if this condition is met, he agent should bear all responsibilities. The Counterpart is regulated not only being subjectively goodwill, but also should assume obligations of necessary attention so as to judge whether the Apparent agency was valid objectively and control the subjective factors in Apparent agency, then balance the interests between counterpart and principal. In the aspect of principal, to avoid the judgment of Apparent agency into a misunderstanding caused by the factors of principal, the connection between the fault of principal and the occurrence of Apparent agency shouldn't be thought as the constitution element of the Apparent agency. But the factor of principal should be taken into consideration when it comes to judging the Apparent agency. In judging whether the Apparent agency is established, the fault of principal and counterpart should be weighed, when principal has grievous fault, counterpart shouldn't assume the obligation of attention, when principal has general fault, the interest of counterpart should be focused, and his attention obligation should be lighten, when principal has little fault, counterpart should assume the most attention obligation.In the aspect of taking responsibility, because it is a dynamic process from proposition of the Apparent agency to its establishment, in which the counterpart can make a free choice between non-authorized agency and Apparent agency and exercise the right of revocation as well. However, once principal admits the proposition of the Apparent agency or it is ensured by court, principal should bear its legal consequences that is to take the responsibility of the contract. Principal may bear the additional costs for assuming the contract and make compensation to counterpart for the losses of misfeasance, and may also suffer losses from the misbehavior when exercising the right of disposition. When principal exercising the right of recovery toward agent, it should be shared reasonably based on their own faults. Specifically, if principal has grievous fault, he has no right to claim recovery toward agent, if principal has general fault, he should share the losses evenly with agent, when principal has little fault, he can exercise the right of full recovery. Principal can make free use of his claim right between default and tort according to his ability of burdening the proof.