Research On Judicial Conditions Of Apparent Agency System

Although China’s“contract law” and the “general rules of the civil law”for theapparentagency system are mentioned, but because the description is too simple,leading tothe judicial practice in the apparent identified agent system exists manyproblems, and the complexity of the actual case, often have "the same case differentjudgments"case. So clearly apparent agency system in the identification of thestandard for the actual trial, a clear reference scheme, has become the theoretical andpracticalproblems to be urgently solved. The author in this paper, combined with theexistingcivil law theory, and through the case in the form of identification of theapparent agency and not the three key problems in judicial practice: whether torequest the principal has fault, how to identify the agent has the power, how to judgetheappearance of a bona fide counterpart or not, were analyzed.In the academic circles on the apparent agency established whether requirementsareagent has faults, there are basically two points of view, namely, single factor anddouble elements. Among them, double element that advocate if generated by agentsofthe right appearance without the slightest negligence, with only the right appearanceand relative people of goodwill without negligence case, does not constitute theapparent agency. The author through comparing two different cases of representative,and carries on the analysis from the theory and value of two convenient, thinks that injudicial practice, should be whether the agent has the fault,as one of the criteria tojudge the cognizance of apparent agency is established.The right appearance that is false right token, while the right token that is usedtocertain external form recognition of rights, it is the technical means tangibleandliquidation rights. Can say, the right appearance conveys false right information,alsoprovides support for most basic relative people of goodwill trust. But for how toidentifyagents with trusted right appearance, in judicial practice is not a clearjudgment standard. The author combined with a typical case, analyzes the cognizanceof theright appearance in the case, should grasp the right appearance whether has theobjectivity, continuity and the publicity of the standard, combined with the relative person should pay attention to in the specific transaction level, the comprehensivejudgment of whether the agent has the right appearance.At the same time, the distribution of burden of proof, because whether the agentright appearance has legitimacy is in relative terms, and the relative person andIcompared with the agent, has the advantage of burden of proof, the burden ofproofshould therefore be made by the relative bear agent whether it has theappearance of power.“Contract law” article forty-ninth is only general provisions relative people in"there is reason to believe that" circumstances, can be identified as apparent agency.So whatkind of situation can be thought of as "there is reason to believe that"? Theauthor thinks, where there is reason to believe that it should be understood asgoodwill without negligence. Goodwill refers to the relative who had wrongunderstanding for proxy state itself, namely the behavior person without power ofagency, but incorrectlythe trust to have agency; and no fault is according to thedifferent environment, avoids the bona fide counterpart’s verification obligations.Only when the relative person and neither do the goodwill, but also achieve when nofault, it may be referred to the matter of relative bona fide counterpart, thenconstitutes the law said,"there is reason to believe that".In the allocation of the burden of proof, should be by himself to demonstrate therelative people are non white. Because if the relative person to prove knowledge oftheir own, or try to review of obligations is very difficult, and I proved by relativepeople know that the agent is not good faith, or not to fulfill their duty of examinationis relatively easy. But in the absence of any evidence to the contrary situation, thepresumption of relative person is kindness and has no fault, is also in line with thewriter’s many years of judicial experience. Therefore, should by himselftodemonstrate the relative person is non bona fide or negligent.