A Study On The Non-Causative Nature Of Act Of Agency Authorization

The agency system, as an important part of civil and commercial legal system, plays a significant role in civil and commercial circulation and improves constantly with the development of the economy. The research objective of this paper is the non-causative nature of act of agency authorization in civil law system. Act of agency authorization deduces from "agency differs from appointment", the great discovery in the science of law, brought up by P. laband. The non-causative nature of act of agency authorization applies the legal technology of non-causative nature which deduced from the non-causative nature of juristic act of real right.Both agent authorization and juristic act of real right process the non-causative nature, but still different are they. This paper agrees with the possibility of applying the legal technology of non-causative nature by act of agency authorization through analysis of non-causative nature. The policy goal of non-causative nature is to protect the transaction safety, and the policy goal of agency by estoppel is to protect a bona fide third party. However, there are many differences between non-causative nature and agency by estoppel, so it is necessary to apply act of agency authorization to protect the transaction safety.For discussing the issue of the non-causative nature of act of agency authorization, the paper analyzes from the two aspects of legal technology and legal policy as follows: The first chapter focuses on the historic development of the agency system and act of agency authorization. The agency system was seeded in the Roman law period, and the legal relation of agency was generated from dynamic commercial behaviors. French Civil Code regards the agency as only an external expression of authorization. P. laband came up with the theory that authorization and agency is not two aspects of the same relationship, but two different relations. However, legislators of BGB agree that act of agency authorization does not belong to non-causative action. Article65of General Principles of the Civil Law of China stipulates power of attorney, but does not explicit whether act of agency authorization possesses non-causative nature.Chapter two firstly discusses about the relation between act of agency authorization and basic legal behavior. It concludes that there exists ultimate difference between act of agency authorization and fundamental legal act through discussion with Ms Jiangfan’s views. Then, this chapter makes a prerequisite discusses on the internal basic issues of act of agency authorization. In the end of this chapter, the author classifies theories of act of agency authorization and basic legal relationship, including theory with cause, theory of non-cause, theory with relative cause, and theory of distinguishing internal and external authorization.The third chapter discusses act of agency authorization from the perspective of legal technology to probe whether the act of agency authorization can apply non-causative nature. The paper here analyzes non-causative acts from the traditional action with and without cause and concludes traditional theory’s necessary elements of non-causative nature system. The paper argues that the agency authorization system can be constructed through the legal technology of non-causative nature after comparison between act of agency authorization and typical non-causative juristic act of real right.Chapter four discusses non-causative nature of act of agency authorization from the perspective of legal policy. The paper here at first argues that the theory with cause would weaken the independency of agency legal relation through analysis on construction of the agency authorization system. Basing on that argument, the paper then makes an analysis on foundations of policy-transaction safety, for construction of the agency authorization system. After discussing on system of agency by estoppel and non-causative nature of act of agency authorization, the paper concludes that those two systems should co-exist and the system of non-causative nature of act of agency authorization should be constructed to protect transaction safety better in China.