Discussion About The Use Of Agency By Estoppel In Judicial Practice

There’s no exact legislative stipulation for Agency by Estoppel in the mainlandof China. Somehow in Tai Wan province, Agency by Estoppel is regarded as a specialkind of Apparent Agency. In recent years, as our judicial revolution is goingcontinually, Agency by Estoppel is used more and more frequently. Due to theundeveloped legislative system, Agency by Estoppel is often misunderstood by courtswhich make different judgments about Agency by Estoppel. Those misunderstandingabout Agency by Estoppel leads to many problems which focus on two sides. On onehand, whether article66, paragraph1, sentence3of General Rule of Civil Law canapply to Ratification by Implication; On the other hand, whether Agency by Estoppelcan be as a special case of Apparent Agency. This article will address the above issueswith the method of analysis with examples and comparative analysis. First to discussthe academic point of view of article66, paragraph1, sentence3of General Rule ofCivil Law. Some thoughts supported it with Ratification by Implication, while someother thoughts supported it with Apparent Agency. But I think it should be applied tothe Agency by Estoppel. Second to compare Agency by Estoppel with Ratification byImplication and give a conclusion that article66, paragraph1, sentence3of GeneralRule of Civil Law does not apply to Ratification by Implication, but should apply toAgency by Estoppel; Third to compare Agency by Estoppel with Apparent Agencyand comes to a conclusion that Agency by Estoppel can only exist as an independentagent system, rather than be regarded as a special case of Apparent Agency. Thepurpose of this paper is to solve those two problems, which must be started from thedifferentiation between Agency by Estoppel and some other related systems(including Ratification by Implication and Apparent Agency). Although the threehave something in common that they all give effect to unauthorized agent and areaimed to ensure the transaction security and the boon counterpart’s benefit, law should be accurate and rigorous as primary standard, rather than just adopt any of the legalstipulations on purpose. So to distinguish these similar system is absolutelyunnecessary. This article aims to analyze and solve problems of using the system oftolerate agents to fill gaps of this system in China’s mainland in order to further theinterests of justice.