The Improvement Of The System Of Commercial Agency

Under the background of the increasingly mature market economy, the increasingly refined division of social labor and the globalization of economy, the commercial agency have made great progress throughout all aspects of commercial activities, and are widely used in domestic business and international trade. The agent thus has become an indispensable independent subject in business transactions. Commercial agency is a kind of behavior with legal effects in which the agents are for-profit. Commercial agency system is playing an active role in many aspect, such as to achieve mutually benefit for the parties in business activities, to expand of autonomy of will for the business subject, to promote the efficiency of the transaction, to maintain transaction security, to accelerate the market economy and to promote economic integration. Whether in civil law countries or common law countries, and whether in countries with legislative system for civil law and commercial law separated or combined, the commercial agency is an important system in the field of private law.Due to the difference in historical development and theoretical basis, the agency system of common law and civil law are not the same. The most significant difference is that the common law system is based on ’The theory of Identity", while the civil law system "The theory of Difference". In common law system, the legality instead of the form of agency is more important. The agent’s behavior is regarded as the principal’s and the agency range is very wide. In civil law system, the relationship between agents and principals and relationship between agents and third-party are distinguished. The content and form of agency are more important. The law system in China has inherited the civil law legislation mode and based on "The theory of Difference". The guiding ideology tends to believe that the commercial agency is a special manifestation of civil agency in the area of commercialization. Therefore, the law in China fails to reflect the characteristics of commercial agency. Contradictions appear within the law, and it becomes more and more difficult to adapt to the rapid development of commercial agency practice. Tn fact, as a gradually developing system in market economy, commercial agency, compared to civil agency, has its own characteristic in aspects like the source of proxy, legal responsibility, agent content, the identity of the agent and so on. Specially, the for-profit characteristic of commercial agency is the fundamental difference compared to civil agency. It is inevitable to encounter the judicial predicament if we solve problems in commercial agency in the perspective of civil agency. In some of recent theoretical study, the commercial agency and the civil agency are not distinct. Some of the research on commercial agency has focused on particular areas like foreign trade or stock agency. They all failed to extract the common characteristic of commercial agency. So it has great significance to prefect the commercial agency system in China. In the understanding of the commercial agency, one should focus on two aspects: the abstract nature of agency and the characteristic of commercial relationship. In view of this, the author proposed that the for-profit characteristic is the core to prefect the commercial agency system. In this study, kinds of method are adopted, such as comparative analysis method, case analysis method, conceptual analysis method, literature analysis method, inductive analysis method, deductive reasoning method and so on. This research attempts to base on the existing legislative status and problems, to explore the legislative model that fits the environment of China’s legislation and commercial practice. Advices on the legislation are proposed to balance the relative rights and obligations between the agents, the principles and the third-party.