Explore The Perpetrator’s Civil Responsibility After The Unauthorized Agency In The Narrow Sense Is Invalid

Unauthorized agency in the narrow sense before the perpetrator ratify is uncertaineffectiveness, when the perpetrator does not ratify, the unauthorized agency is invalid. Butthough the unauthorized agency is invalid, civil act is between them. According to the article66of "general principles of the civil law", when the perpetrator does not ratify, the perpetratorhas civil responsibility. This thesis adopted the form of case analysis, using "Zhi Mou vs. YiMou,Yi Moumou" a case as the research object, combined the dispute between the clientswith judicial point of view to clarify the problem needed to be solved during the trial of suchcases. Because at present our country legislation on the perpetrator’s civil responsibility whenthe unauthorized agency in the Narrow Sense is invalid did not make clear rules, so we try tothrough the comparison between Continental law system and Common law system to putforward the superficial view about perfecting our unauthorized agency system, in order topromote our country special cases of unauthorized agency have a uniform, fair and impartialjudgment, maintain the authority of law in our country。The main ideas and specific structure of this thesis is as follows:The first part is introduction of the case and the dispute. Dispute includes two points:(a)Yi Mou is the agency by estoppels or unauthorized agency in a narrow sense?(2) When theunauthorized agency in the narrow sense is invalid, what is responsibility dose unauthorizedagent Yi Mou bear to Zhi Mou?The second part is the analysis of the case dispute. About the above issues, according toour existing legal provisions, refer to the relevant systems of the Continental law system andCommon law system, and combined with the case put forward specific facts about the pointof view and theoretical insights to the case. This section includes three small parts again.First of all, according to the first issue of this case, through the comparison to both, wethink the biggest difference between them in terms of constitutive requirements is agency byestoppels requirements right appearance exists, and the other party in good faith and withoutfault, but unauthorized agency in a narrow sense does not demand. Therefore thinks Yi Mouin this case the act constitutes unauthorized agency in a narrow sense.Secondly, in view of article48of "contract law" and article66of "general principles ofthe civil law" have no clear liability for unauthorized agent in a narrow sense, this part weintroduced the Mainland legal system and Common law doctrine of liability for unauthorized agent in a narrow sense. This section is divided into three parts.One is the basis of the unauthorized agency problems. In this section, this articleanalyzes the contracting fault liability, the contractual liability, the tort liability, and theimplied warranty liability; finally, with pointing out the rationality of the implied warrantyliability, we approve the last one.Second is about the responsibility of the constitution and the disclaimer. Unauthorizedagent in a narrow sense should bear the responsibility behavior to the other party, but this doesnot mean that all of unauthorized agent in a narrow sense has no right to defuse to bearing theresponsibility to the other party, only satisfy certain conditions when unauthorized agentshould be liable for unauthorized agency, this paper respectively from the agent, the otherparty, principal three aspects put forward the components of the unauthorized agencyresponsible. However, this responsibility is not absolute, there are exemptions situation forunauthorized agent. Combining the regulation between Continental law system and Commonlaw system, this paper argues that there are five liability situation is worth our using forreference, related to relative person and principal have two kinds, related to unauthorizedagent have one kinds.A third is about responsibility content, on responsibility; many countries of thecontinental law system and Common law system approve liability for damages, but somecountry of continental law system claim to perform the contract or liability for damages,through analyzing the basis, we put up our own views, About the specific scope of damages,there are four kinds of point of view, the first claim to performance interest; The second viewadvocated reliance interest theory; The third kind of view is that relative party can advocatetrust interests or performance interest, but requests the trust interests shall not be greater thanto perform; A fourth view claims that according to the relative party has fault or not, the agentbear the performance interests or the trust interests. In order to be fair to coordinating theinterests among each part, we use example to support the fourth view. If the perpetratorperform the contracting fault liability, the scope of damages is trust interests.Finally, through to analyzing the judgment of the court, we points out its legitimacy andrationality and make a summary of this case, and we put up our own views.The third part, namely the last part of the article, based on the previous theoretical andpractical analysis, we suggested that increase the legislation of the unauthorized agencyliability and the exemption conditions, in order to perfecting agent system which is still in the initial stage, maintaining the credit system, promoting the development of market economy.