Identification Of Agency By Estoppel In The Field Of Contract Disputes In Construction Engineering

At present, the construction engineering contract dispute cases related to the agency by estoppel is more. Many are not the same all over the court ruling, Reflect the judge in the agency by estoppel concluded that there are major differences on the issue. This paper lists three apparent agency by estoppel of typical cases, summed up the four points of controversy:one is how to determine the criteria for judging the appearance of agency; the second is how to determine the relative person reasonably relied on the judgment standard; the third is how to determine the criteria of relative people of goodwill without negligence; the fourth is oneself can imputation of whether the introduction of elements and the judgment standard.The main form of the representation of the agency right is the document and behavior. In the judicial practice, we should judge according to the following criteria: firstly, the documents or acts with typical characteristics can be directly identified as the appearance of the agency; the second, it is not a typical appearance of the characteristics of the instrument or behavior, should be strictly identified; thirdly, it is for the more complex forms of external form should be integrated to determine.Rational trust should adopt the standard of "abstract standard" and the case of the case. Trust belongs to the category of subjective cognition, judging whether it is reasonable or not, it should be verified objectively. In case of case handling, judge whether the trust is reasonable, it should be combined with the appearance of the time, the relative person’s businessman identity, the relative person to take the corresponding measures, the relative people in the external environment, such as the objective elements of comprehensive analysis.Good faith means that the relative person does not know or should not know the appearance of appearance and real legal status of the separation, and can through the relative people to do a certain duty of care, whether or not to judge. In judicial practice, the following two situations can determine the relative people do not have good intentions:first, the relative people and the behavior of malicious collusion; two is relatively people know or should know that the actor does not have the right to proxy. For the relative person no fault of the judgment, mainly from two aspects:the appearance of the agent right of suspicious degree and the relative person whether to fulfill the duty of care and attention.The main difference of the elements of the theory of the civil law of our country is whether they are asking me to be wrong, and this is the dispute of "single element" and "double elements", but there are two points of view. I weigh myself against the legitimate interests of the relative person, with my own behavior and the appearance of the right to act as a component of the constitution is more appropriate."Contract law" forty-ninth on the table to see the provisions of the principle of the more easily lead to the judge in the referee’s abuse of the table to see the problem. To this end, the Supreme People’s court to develop the relevant judicial policy, proposed that the table should adhere to the principle of subjective elements and objective elements of the uniform, that is, the objective of the relative people can rely on the appearance of the subjective, relatively good faith and no fault, and put forward a strict determination of the overall requirements. At present, the local court for the identification of the table to see the attitude of the agency, the reason is not only with the judge’s theory level, but with the local social and economic development level and the judicial environment has a great relationship. On the whole, some local courts in the central and western regions and economically underdeveloped areas are more relaxed about the identification of the agency by estoppel, while some of the eastern part of the district court made the concept of the agency by estoppel system, and formulated the guidelines for the trial of the agency by estoppel in the field of construction contract disputes.In the judicial practice, some judges on the standards of the agency by estoppel also has a tendency to "loose decided". From the current situation, the standard is more reasonable, that is not only to examine whether the existence of a relatively reliable representation of the agent, the relative person is not in good faith, but also to audit the behavior of the people in the implementation of the representation and I have been implicated.The court finds that the scale of the agency by estoppel is different, and it is imperative to establish a unified standard. It can make some improvements in the standard of judicial discretion, the formulation of relevant judicial interpretation, the publication of the typical case and so on.