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Research About Controversial Legal Issues Of Apparent Agency

Posted on:2015-03-07Degree:MasterType:Thesis
Country:ChinaCandidate:Y F LiuFull Text:PDF
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Apparent agency is very important in civil law system,though there are only few provisions about it in our substantial law.With the rapid development of social economy,frequently of commercial transactions and complication of transaction means, agent system plays a increasingly important role in social interaction,at the same time,business disputes that caused by agent are more and more.This paper uses the theory with practice,and the method of making comparative analysis on the relevant rules in domestic,makes a deeply discussion for the controversies about apparent agent in our civil law.This paper mainly includes the following several parts.Part one:the theoretical basis of the apparent agent. This paper discusses the value of apparent agent existing in our civil law in three aspects,which respectively are the legislation value,the function and the proper interpretation.Part two:the determination of constitutive requirements of apparent agent. This part mainly aimed at discussing whether subjective fault is necessary in apparent agent。There are two current mainstreams:single element says and double elements says. For this two views, I myself have different opinions, and also analyze its irrationality. This paper also analyzes the phenomenon of the application disunity,which existing in constitutive requirements of apparent agent in judicial practice.Combined theory with practice,the article puts forward the view of the constitutive requirements of apparent agency which is based on the principle of risk,and present my own views of its rationality and specific application.Part three:the judge of the other party’s good intentions.This chapter combines foreign related legal provisions then presents several views of the questions about good intentions in our civil law.The one is that,the meaning of good intentions in our civil law is not unified, so it should be given a general understanding.The elements without fault has already be contained in itself.The other view is that, set the time of juristic act establishment as standard to determine whether the other party is in good faith can better balance the interests between the other party and principle.Part four:the application of tolerate agent.The article starts with the concept and the nature of tolerance agent, analyzes the existing laws and regulations of tolerate agent in domestic and abroad, compares the relationship between tolerate agent and apparent agent, combines the different application state in academia and judicial practice, then puts forward that the tolerate agent in nature belongs to a special type of apparent agent,and presents my own views of the constitutive requirements and the specific application of tolerate agent.
Keywords/Search Tags:Apparent Agency, Risk Principle, Good Faith, Tolerate Agent
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