On Right Of Intervention Of The Principal In Indirect Agency

This article started with basic theories of indirect agency, then tried to discuss intervention of the principal in indirect agency. The article tried to combine and grasp the integration and stretching trend of common-law and civil law by applying comparative studies, so as to find out what had been neglected in China’s civil law system and provide proper countermeasures to solve them, which shall put intervention of the principal system function properly in practicing indirect agency.Chapter I “Introduction of intervention of the principal in indirect agency”. Section 1 brings about the applicability and coherence lying inside intervention of the principal, on the basis of agency theory in common-law countries and their classification on agents. Section 2 talked about agents in civil law countries and discussed feasibility and necessity of transplanting intervention of the principal, and what is to be revised. Section 3 reviewed related litigation in our civil codes and pointed out its flaw in agent litigation, and advised necessary modification from the point of coordination of the whole legal system.Chapter II “Enforcing intervention of the principal in indirect agency” Section 1 discussed preconditions of enforcing intervention of the principal by distinguishing anonymous agent from principals who’s unwilling to disclose his identity. Based on what have been discussed, the author tried to provide advice for improving preconditions described in section 403 of Chinese Contract Law. Section 2 focused on the restriction brought by contract provisions and personal factors, and continued discussion on section 402&403 of Chinese Contract Law, especially on the proviso part. In Section 3 the author pointed out that direct intervention and certain inform should be the condition of enforcing intervention.Chapter III “legal effect of intervention of the principal in indirect agency” In Section I the legal statues and counter-plead right were discussed, and they should need further definition in law. Section 2 addressed the situations in which agent will not necessarily be relieved, and the definition and boarder of his duty to disclose. Here the authored wrote about her advise on section 402&403 of contract law. Section III dealt with double counter-plead right and right to select of the third person, and focused on relevance between right to select and intervention of the principal.After abundant discussion and introduction on different instance of legislation from civil and common law, the author believe a section of indirect agency should be amended to the Chapter of China’s Civil Code, so to give a clear description on its legal effect. If the legislation conditions are not achievement, current section 402&403 of Contract Law should be moved to the Chapter of “enforcement of the contract”, as a special rule of the whole contract legal system, to distinguish broker and agent, At the same time, “should known” by the third person should be added to section 402 as a precondition factor, and give an exact definition of “clear evidence”. A “clear evidence” should be referred as contract provisions and personal factors, and the law should explicitly state that the principle can only take what his agent could have taken from the third person and the agent shall have the duty to disclose. It is also necessary to add “the agent’s insolvency on the principal or fundamental breach of contract or anticipatory breach of contract” to section 403 as a condition, then refine the restriction on intervention in proviso and specify agent’s responsibilities, and the right to select should be prior to the intervention of the principal.