On The Legal Application Of The Constituent Elements Of Agency Of Estoppel

Agency of estoppel has a strong significance of theory and judicial practice.The determination of its special essential elements depends on the value of the system it intends to achieve which is balancing the benefits between the principal and bona fide party, safeguarding the transaction security and promoting transaction efficiency. The Article 49 of Contract Law of our state clearly establishes the apparent agency system,but its stipulation is vague which lead to the disputes and differences on the essential elements among the academic and practical sessions. Furthermore,the specifical criteria for the constitutive elements is not very definite and lack of operability which is lead to the instability of judicial adjudication in our country. This article will give a conprehensive analysis on the specail essential elements and their judgement criteria of angency of estoppel based on the legislations and judicial pratices in our country and draw lessons from foreign legislations and judicial practices, hoping to clear thinking of the application of agency of estoppel in the judicial pratices.This paper is divided into five parts except the introduction and the conclusion.The first part puts forward problems from a case heard from the Supreme People’s court. Then it expounds the legislative and judicial status of our country’s apparent agency system and analyses the existing problems in depth which pave the way to solve the problems from the elements of the composition and related matters.The second chapter to the fourth chapter is about the detailed demonstration of the three components of agency of estoppel. In the second chapter, the necessity,characteristics and factors of the appearance of the agent right are expounded. The appearance of the agent right is the objective basis and the precondition of the application of agency of estoppel. The appearance of the agent right should be facts that are visible or perceivable from the outside which have clear and definite representation. The appearance facts of the agent right are diverse, persistent or stable.In determining whether the appearance of the agent right is formed, it should be combined with the specific circumstances of the case and the considerations including the identity of the actor, the nature of seals used, trading habits, etc.The third chapter discusses the meanings and necessity of the relative person’s bona fide and makes classified research to the considerations. Bona fide means that the relative person does not know that the actor has no right to act as the agent, and his trust of the appearance of the agent is not a fault, or his reliance is reasonable. The relative person’s bona fide is the moral basis of the application of agency of estoppel.The objective environments to judge the rationality of the relative person’s trust include agent appearances with different characterization strength, trading history or trading habits, the nature of the legal act of the actor, the susceptibility of the documents related to the appearance of the agent right and whether the relative person’s behavior is in violation of the normal operating procedures or verification standards.The fourth chapter demonstrates the principal ’ s imputability, introduces the theory debates and trial practices and compares the difference between Germany and France. The principal’s imputability is a kind of balance mechanism to coordinate the conflict between the interests of the third people and the principal. Judicial fairness also requires us to introduce the concept of accountability. In this paper, the principle of risk should be applied to judge the principal’s imputability, and the principle of fault is also suitable which can play a supporting role.In the fifth chapter, we discuss some matters needing attention in the application of angency of estoppel in our country. It is very important to understand and grasp the value of the system when legal norms fail to provide specific criteria for the judicial application of agent of estoppel. In addition, agent of estoppel should be strictly identified and adhere to the principle of modesty. The specific application rules should be clear and perfect. It is neceesarry not only to unify the class standards, but also to carefully check the facts of the case.