On The Constitutive Elements And Effect Of Agency By Estoppel

Agency by estoppel is an important legal system in civil law,we should pay more attention to.Although the "contract law" Article 49 for the agency by estoppel have stipulated in principle,there are still different views for the elements of the agency by estoppel in the judicial practice and academic discussion.This paper focuses on the comprehensive analysis of different views,and puts forward the views of the elements and the application of law.This paper is mainly divided into three parts:The first part,the theory controversy of constitutive requirements of agency by estoppel.Single element theory is that as long as relative person believes that the agent has the agency right in goodwill without negligence,agency by estoppel is founded.The dual documents theory requires not only above elements,but also principal's fault.Only the two are founded at the same time,can constitute agency by estoppel.The author believes that the two make sense in a way,but there are also some defects.The new dual documents theory inherits critically of the two.The second part is the analysis of the constituent elements of the agency by estoppel.The new dual documents theory is that the constitutive elements of the agency by estoppel includes the imputation of principal,right appearance and the relative person's reasonable trust.Right appearance is the objective basis,the relative person's reasonable trust is the subjective rationality.In addition,if the formation of the right appearance is because of the factor within the scope of risk of agent,agency by estoppel is established.The third part,the legal effect of the agency by estoppel.In the agency by estoppel system,the relationship between the principal and the agent is the internal relationship,and the relationship between the principal,the agent and the relative person separately is external.The principal has ratification to the relative person and right of claim to the agent.The relative person has the right of revocation and claim to the principal.Simultaneously,the agent can request the principal return to reasonable costs.