On The Legal Effect Of The Act Under An Assumed Name

The act under an assumed name occurs frequently, but no matter in the theoretical area or in the judicial practice exists there paradox and controversy on the legal effect of the act under an assumed name. This dissertation, in view of this, endeavors to make a thorough inquiry of the legal effect of the act under an assumed name so as to provide some assistance to the judicial practice.This dissertation includes of five parts apart from the preface. Part one discusses the legal loophole and adjudicational divergence on the act under an assumed name. Since the active civil legal system provides no rule to regulate the act under an assumed name, and this type of case doesn’t belong to the free space(German: freier Raum) that the law doesn’t plan to regulate and the significative silence of the law(German: Beredtes Schweigen des Gesetzes), indeed exists here legal loophole. The deficiency of rules leads to the confusion in the judicial practice, there are two contradictory judgments and up to eleven judicial opinions. Through the reorganization of literature discovers the author what is at issue are whether rules of agent system could apply to the act under an assumed name or not, which includes unauthorized agency and agency by estopple(apparent agency), and whether unauthorized disposition rule and bona fide acquisition rule could apply to the act or not. Some scholars even take the concept of civil act related to criminal act into account. Germany civil academic circle which studies this question in advance discusses the legal effect of the act under an assumed name according to the combination of different subjective conditions of each part in the relationship in the agency part of civillaw-textbook.Part two elaborates on the legal structure of the act under an assumed name, the impostor concluded a juristic act by acting under the namecarrier’s name in the case of ignorance of his name being personated. This part, in order to delimit this dissertation’s area of discuss, distinguishes the act under an assumed name from the act of taking the name of another as one’s own and the act under a borrowed name even and the act in an unspecified person’s name, then classifies the act under an assumed name categorizationally.Part three discusses the execution and validity of the act under an assumed name. The dissertation, firstly, distinguishes the act under an assumed name from agency system in the active civil legal system of the PRC, then abandons the method took currently of selectively system comparison, finally takes declaration of intent rules as the tool to analyze the execution of the act under an assumed name. The transaction which the subject’s name doesn’t affect executes between the impostor and the counterpart. Where the subject’s name affects significantly to the transaction, if the counterpart is fully aware of that the impostor is under an assumed name, then the act executes between the impostor and the counterpart, if the counterpart is unconscious of that, then the act executes between the namecarrier and the counterpart. The act is commonly valid which is concluded in instance that the counterpart is fully aware of that the impostor is under an assumed name, but void is the act that is detrimental to the interest of the state, a collective or a third party. The validity of the act that the counterpart is unconscious of that the impostor is under an assumed name is decided by the will of the namecarrrier.Part four discusses the alteration of real right in the act under an assumed name. Where the counterpart is fully aware of that the impostor is under an assumed name, if the impostor fulfills the contract by his own property, then definitely alters the real right, if the impostor fulfills the contract by the namecarrier’s property, then the validity of the juristic act of disposition is decided by the owner according to the unauthorized disposition rule, if this act is void because of its being detrimental to the interest of the state, a collective or a third party, then the real right wouldn’t alter for the principle of having cause of juristic act of disposition. The act of disposition accord to the juristic act of liability which is concluded in the situation where the counterpart is unconscious of that the impostor is under an assumed name is called the juristic act of disposition under an assumed name(the JADUAN). The bona fide acquisition rule is not applicable to the JADUAN for that it doesn’t belong to the concept of unauthorized disposition and that it is not a part of regulating range of the bona fide acquisition rule.