Study On The Liabilities Of The Unauthorized Agent In A Narrow Sense

The emergence and development of agency system can find classic expression inthe principle of party autonomy of the civil law, which fully reveals civil law’s respectand protection for the personal willingness. However, when the authority of agency isvacant, the original autonomy of will also vanishes and the system loses its essentialmeaning. It is the very starting point of this thesis, namely, when the well-designedagency system of the civil law lacks the most important part, how we shouldcomprehend and analyze the numerous and complicated legal relation and clarify theunauthorized agency liability under different conditions.This thesis concentrates on the study of the unauthorized agency system in anarrow sense from the following aspects:In term of the constitutive requirements, different scholars hold different ideas,among whom some scholars’ ideas are extremely concise while a part of scholars’ areparticularly complete and detailed. To sum up, when such constitutive requirements asunauthorized agency activity and the counterpart’s goodwill are recognized jointly, theconnotation of constitutive requirements becomes more detailed and accurate with theconstant abundance of juridical practice. Instead of conducting further improvementof the constitutive requirements’ connotation based on the thought ofabove-mentioned scholars, this thesis applies the “subtractive thought” to making adistinction between the constitutive requirements and the limiting factors of the liability and then conducting a specific judgment for them under the circumstance thatnumerous scholars deal with the constitutive requirements of the unauthorized agent’sliability in a narrow sense by means of the addition thought. Besides, it is worthmentioning that this thesis takes the counterpart’s malice as the limiting factor ofliability rather than taking the counterpart’s goodwill as the constitutive requirementsof liability based on the overall consideration and weigh by means of theinterpretation of the law.This thesis lays emphasis on the affirmation of the nature of unauthorized agent’sliability in a narrow sense. Although totally different views on the connotation haveemerged in the history, the rise and decline of these views obviously reflects the coreidea of the development of the whole unauthorized agency system in a narrow sense,namely, the unceasing protection for the interests of the counterpart. Since every viewpossesses its rationality and the limitation, it tends to be replaced by the view whichgives more expression to the constant protection for the counterpart’s interests.Through studying views in previous studies, the author discovers two commonfeatures of these views. Firstly, scholars always restate previous viewshomogeneously but fail to conduct sufficient discussion on the current popular theory,“the theory of special legal liability”. Among the data I have read, Wang Zejian’s“theory of statutory guarantee” involves a relatively complete and accurate discussionbut which is not comprehensive enough. Secondly, the theory of implied warrant failsto define its real connotation and it is improper to deny it simply base on the principaland subordinate contract theory, so this thesis attempts to search for the very originaldata so as to clarify this question to a largest extent. By virtue of the detailed analysisof the nature of above-mentioned views, thesis proposes the view of affirming thenature of liability according to the difference of unauthorized agent’s subjective stateof mind, namely, distinguishing whether the unauthorized agent is fully aware that hehas no right of agency or not so as to affirm it as the contracting fault liability orstatutory guarantee liability. With respect to the rationality of every determination onthe nature, this thesis conducts a careful analysis. The acceptance of the unauthorized agent’s liability in a narrow sense constitutesthe important part of this thesis. This thesis follows the legislation model ofGerman in terms of the methods of bearing liability and affirms the unauthorizedagent as bearing liability of the reliance interests or performance interests duringdistinguishing the goodwill from the malice of unauthorized agent. However, thisthesis not just entirely copies the legislation model of German but puts forward theauthor’s view in the affirmation of disposing capability, the fault balance principle andother issues. In a word, this thesis sticks to the thought of respecting numeroustheories but not following them blindly, referring to various theories but not believingin them blindly, trying to balance among the interest of all parties of the unauthorizedagency system on the condition of maintaining the consistent logical thought on thewhole.