Thesis On Constructing Chinese Commercial Agency Institutions

Commercial law differs from civil law in value orientation and system design,for complex and non-stop changing commercial activities require convenience,high-speed and safety. Commercial agency has advantages in expanding legalpersonalities of its participants, reducing transaction cost of economic activities andachieving maximum profit. That is the reason why commercial agency has beenwidely employed in inland commercial transactions and even in international trade.Most continental law countries have compiled Commercial Law Code, in which thereare specialized chapters on commercial agency institutions. Meanwhile, common lawcountries also have full-order theories and rules on agency. However, China stilladopts civil agency laws in handling commercial agency activities, which not onlyneglects commercial agency’s characteristics, but also exits legal leaks of indirectagency. This status has already hindered the development of commercial agency.Therefore, the author tries to explore how to perfect Chinese commercial agencyinstitutions. Besides introduction and epilogue, this thesis is been divided into fourparts:Part One: Introduction of civil agency in continental law system. This thesis firstintroduces definition and nature of civil agency law in continental law system, andemphasizes the importance of indirect agency. On analysis of civil agency theories,the author agrees with separation of appointment and authorization, and also points out that “the separation” under continental law which opposes “the equalization”under common law is one misunderstanding.Part Two: Analysis of commercial agency in continental law system. Fromdifferent definitions of commercial agency, this thesis analyzes four main features ofcommercial agency compared to civil agency: business qualification of participants,not strict with “in name of principal”, only one occurring reason for power of attorney,and the na1ture of profit. In addition, the author exemplifies those features in laws toillustrate the importance of constructing commercial agency institutions.Part Three: Comparison of commercial agency in continental law system withagency in common law system and analysis of Chinese commercial agency status.Through comparing formalistic commercial agency in continental law system withsubstantial agency in common law system, this thesis emphasizes the importance ofindirect agency for commercial agency, and China should borrow ideas from commonlaw system. What’s more, this thesis shows the difficulties because of lackingcommercial agency institutions by analyzing actual cases and legislation status.Part Four: Construction of Chinese commercial agency institutions. Based oneclectic legislation attitude, the author suggests that the definition of agency should berefined in order to include indirect agency, and to add the notion and principles ofcommercial agency. Moreover, we should coordinate and rearrange Chinese agencyinstitutions by sticking to theoretical principles of agency in continental law, andborrowing methods of common law.