Research On Liability Of The Unauthorized Agent

This article starts with two typical models of legislation in the Comparative Law and discusses whether there were possibilities and paths for us to build a liability system of unauthorized agent.Since the expression of Article 171 of the General Provisions of the Civil Law of the People’s Republic of China is similar to Article 179 of the German Civil Code to some degree,the strict normative system of responsibility for unauthorized agent in German law can provide more effective reference.In combination with the method of interest balancing,the unauthorized agent’s liability is legal warranty liability,which is the basis for the liability of the unauthorized agent.From this,the liability of the unauthorized agent is defined as the contractual liability by legal fiction,making the unauthorized agent enter into the contract with the third party by law,thus providing a basis for elaborating and explaining the content and scope of the liability of the unauthorized agent.Under the premise above,this article tries to structure the system of liability of the unauthorized agent in the method of systematic explanation,teleological interpretation and interest balancing,and draws the conclusion that he third party can choose to claim for the unauthorized agent to perform or compensate for damages on performing benefit,which is not only an effective due meaning of the contract between the unauthorized agent and the third party,but also in accordance with the literal interpretation and the original intention of the legislator on the provision.Furthermore,liability of unauthorized agent is a kind of liability without fault which can be established even though the unauthorized agent has no fault.On the other hand,although the distinction of liability of unauthorized agent in German law is more reasonable,such conclusion is beyond the possible interpretation of the law system in force.However,when the principal is unable to perform all his duties,the scope of liability of the non-authorized agent is limited to the content of the contract that can be obtained when the principal ratified.This is the result of the interest balancingg and is also within the implications of the provision.The aforementioned liability system of unauthorized agent is even stricter than which in German law.Therefore,it is necessary to exempt the unauthorized agent from the liability to reduce the heavy burden on him in reference of the German law.Such claim exemptions for the third party include the third party knew the fact on the unauthorized agency or supposed to know but failed to know in culpable negligence,the third party exercised the right of rescission or the unauthorized agent is limited in disposing capacity,which can be acknowledged by proved logically with the opposite side of the elements of the Article 171 Paragraph 3,logical structure of the Article 171 Paragraph 4 and the consistency of the civil code and the Civil Law even though there is no such express provision in the Civil Law of the PRC.