Difficult Problem Of Agency By Estoppel

Agency by estoppels derives from the high development of commodity economy and the agency system is widely used, its significance in the protection of social security of transactions, trading, especially in today's market economy condition, its more important role. China's" contract law" of ostensible agency system is provided, the legislation comparison Abstract generalities, in judicial practice, the agency that is not a recognized standard is not unified, processing. Therefore, to strengthen the agency's research has the important theory and realistic meaning. This paper from the actual work typically encountered in cases of apparent agency system, combing thecurrent existing problems, targeted for the analysis and research of.Apparent agency in the applicable law to the question of existence is more outstanding, which is embodied in three aspects, that is my fault as constitutive requirements of ostensible agency problem, relative to the review ofobligations and burden of proof, the choice and responsibility.With the development of market economy, commodity trading speed for agency system, put forward the new requirements. From the social and public interests, focus on the protection to the third party of the apparent agency system has gradually been legislators accept. But my fault as the essential elements of agency by estoppel, the current academic circles are the main elements of a single and dual factors. A single element that emphasizes the protection of trade, that the agency was not to be an agent for the establishment of subjective fault conditions, as long as objectively the relative person's trust can be established the objective situation of apparent agency. Double factors of ostensible agency had very big limitation, think my fault and no fault is relatively good, the table sees the proxy was founded on two elements. The author thinks, a single element that is expanded the scope of agency by estoppel, double element that is not conducive to the protection of the transaction security, and puts forward the new single element that, is not in my fault for the agency elements, but the proper consideration of my behavior is there with my contact, no contact is not identified as table see agent.The current law of our country and not on the relative person review obligations provisions, but the table sees the proxy behavior and on human interests, as a kind of prudent transactions also should be on the transaction object integrity, credibility to understand, so the legislation should provide relative to the examination obligation. Fault for the relative people's subjective mental activities, shall be made by the relative burden of proof to prove himself to examine obligation, but the audit criteria have a general awareness and professional cognitive difference, in the judicial practice of the difference between using.China law of relative person option did not make specific provision, the academia to relative people have no choice rights controversy quite. Given relative option, essentially gives the person's act is invalid or valid decision, relative person completely from their own interests is chosen by himself or by the agent without authority to assume the legal consequences, their rights and interests is more favorable than the right agent, contrary to the establishment of agency by estoppels originally, at the same time contrary to the principle of fairness and justice. The article from the system of agency by estoppels legislative purpose, the contracting heart hope etc, discusses the relative option denied reason.In my to relative people performed the obligations of apparent agency, if this benefit, you won't make a recovery, but in fact we often suffer losses, thus produced the recovery. According to the general theory of civil law, if I due to the performance of agency by estoppel arises as a consequence of damage, the reason to carry out acts of recourse. Recourse is also a responsibility, should be combined with himself and the behavior person's fault degree determines the size of. If the acts lead to apparent agency, I benefited from, the behavior is paid the cost of the necessary loss, can refer to the relevant provisions on the administration of the return to my view. If the perpetrator uses stolen letter of introduction, documentation, for the purpose of illegal possession, for relative people's money, it shall be investigated for his criminal responsibility. In the behavior of the human right to act to generate the table sees the proxy, behavior person from relative person to obtain a temporary get my property, it shall timely transfer to me. If people act the use of custody or possess favorable conditions take forcible possession of illegal possession of the property, in accordance with the provisions of the criminal law is constituted the crime of embezzlement, because this crime is a case of private prosecution, I can mention to the court private prosecution. The employees don't get the explicit authorization, its behavior is the duties or the table sees the proxy behavior, need according to their behavior characteristics and the essential elements of agency by estoppel judgment. If that belongs to the post behavior, employees do not assume responsibility; if that is the table sees the proxy behavior, according to the internal liability fault liability principle shall bear corresponding compensation.