Analytical Study Of The Principal's Liability Attribution In Agency By Estoppel

The agency by Estoppel plays an important role in protecting the counterparts in good faith and maintaining the security of the transaction.Article 49 of the Contract Law establishes the Apparent Agency,and Article 172 of the General Principles of the Civil Law of the People's Republic of China adopted by the Fifth Session of the Twelfth National People's Congress on March 15,2017 continues to use the same words.As the provisions of the provisions of the table to see the elements of the agency is not clear,leading to judicial practice for how to identify the agency see different understanding of the standard is more confusing.I believe that regards only the existence of the rechtsschein & the relative goodwill no fault as the elements of the table is not enough.In the absence of any imputation of the rechtsschein,the adverse consequences of the agent will not only harm the inherent legitimate rights and interests of the agent,but also hinder the economic development in the long run.To make the interests of the relative and the interests of their own to achieve a balance,how to determine the agent's accountability is the key,so the legislation can not ignore the principle of attribution,while establishing the elements of the agency by estoppel.Besides the introduction and conclusion,the paper consists of additional four parts:The first part introduces two real cases to raise the issue that the standard in judicial practice of agency by estoppel is different,which mainly divided into a single element and dual elements.The main reason for this phenomenon is the ambiguity of legislation.And then the paper from perspective of historical study,reference to the contract law before and after the promulgation of the relevant elements of the legislation,judicial interpretation and legislative information,to the meaning of the provisions of the legislature and legislator legislative intent to analyze the main issue.The second part is the comparative law research,I studyed the German and Japanese civil law on the provisions of the agency by estoppel and the corresponding principle of imputation,and then compared with our comparative theory,so as to try to provide a good solution to our legal provisions of agency by estoppel.The third part introduces the main doctrines of the civil law theorists in China.The main difference between the traditional theories is whether the agent's fault or imputability as an essential elements.However,in recent years,some new doctrines have provided new ideas for the theory of the elements of agency by estoppel in our country.This part mainly introduces four representative theories and compares them in theory and practice,and the conclusion is that the most reasonable Is Professor Yang Daixiong's doctrine.The fourth part discusses the necessity and feasibility of Professor Yang Daixiong 's "risk theory" in judicial practice.The theory meets the inherent requirements of the principle of fairness which is the basic principles of civil law,while it conforms to the changing trend of the controllable risk of the agent and the relative in the new situation of China's economy and society.What's more,the doctrine can solve the problem of agency by estoppel even in the special case.In fact,many courts have already quoted this doctrine in the judgment.Finally,I try to make my own suggestions on the legislation of our country.