Research On Transplanting Of Agency Law In The Common Law Family

By use of method of historical research and comparing research, from the basictheory of agency law in the common law family and considering the legislationpractice of Contract Law which transplanted “Unidentified principal” and“Undisclosed principal” from the common law system, this dissertation analysesArticle402and Article403of Contract Law, appoints the existing problems and givethe author’s suggestions about the solution. The three parts of the whole dissertationincluding the preface, the text and the conclusion. The text is constructed into fourchapter which is abstracted as follows.Chapter one “an overview of our introduction of agency laws in the common lawsystem”. From the basic theory of agency law in the common law system and ouragency laws, the chapter analyses the backgrond of the transplantation and therelevant provisions of Contract Law. Learned through the analysis of the chapter, thetransplantation of agency law in the common law system was compacted profoundlyby China’s foreign trade agency institution when Contract Law was formulating.、Chapter two “analyses to Article402of Contract Law”. The flexibility andapplicable scope of “Unidentified principal” as been limited strictly when ourlegislators adopted it in formulating Article402of Contract Law. Through the comparison of both civil law countries and international legislation, the chapteranalyses in-depth the elements and the legal effect of Article402of Contract Law andproposes corresponding improvement recommendations.Chapter three “analyses to Article403of Contract Law”. The chapter analysesauthorizing intervention rights to the pricipal and granting rights to choose to the thirdparty. The relationships between provisions in Article403of Contract Law andcorresponding provisions in Commission Contract is very delicate, and the key pointsto differentiate and apply them are to inspect whether the trustee is a broker or not andwhether the trusted matter is within the business scope of a broker or not, and to abideby the principle of applying specific laws in priority of general laws.Chapter four “the consideration about improvement of theoretical basis and legalsystem of our agency law”. The chapter evaluates the legislative practice of theintroduction of the agency law in the common law system, and gives emphasis to thenecessity of the research of agency laws in the common law system. On the basis ofthe analysis made above, the author makes some personal recommendations as toimprove the legislation of the agency laws in the future Civil code.