A Study On The System Of The Agent Right Of Daily Household Affairs

The system of the right of daily household affairsagency,is originated in the ancient Roman law and is an importantcivil legal system to improve the relationship between the husband and wife.Thesystem of the agent right of daily household affairs,although in many national legislation are reflected,to adjust the relationship between husband and wife in the new era as an important civil measures.But what a pity is that our civil law provisions don't have the provisions for the system,which caused a lot of problems.And the systemhas played an invaluable role in improving the efficiency of dealing with daily chores between husband and wife,protectingthe people's interest who has the transactions with the husband or wife and maintaining the stability of the transaction order.The author intends to summarize the relevant theoretical problems of the daily family agency system of husband and wife,and put forward some suggestions on how to establish the daily household agency right system in our country by referring to the experience of other places and draw lessons from the experience of other places.The system of the right of daily household affairsagency,is originated in the ancient Roman law and is an importantcivil legal system to improve the relationship between the husband and wife.And the systemhas played an invaluable role in improving the efficiency of dealing with daily chores between husband and wife,protectingthe people's interest who has the transactions with the husband or wife and maintaining the stability of the transaction order.Thesystem of the agent right of daily household affairs,although in many national legislation are reflected,to adjust the relationship between husband and wife in the new era as an important civil measures.But what a pity is that our civil law provisions don't have the provisions for the system,which caused a lot of problems.The author intends to summarize the relevant theoretical problems of the daily family agency system of husband and wife,and put forward some suggestions on how to establish the daily household agency right system in our country by referring to the experience of other places and draw lessons from the experience of other places.The whole passage consists of three parts:The first part mainly analysis the specific legal issues about the daily housework agency of husband and wife.Which firstly analysis the meaning of husband and wife daily housework agency,the author thinks that husband or wife has the reasonable right to be a agent for each other,also the behavior does not need the agreement of the couple,but for the agent are jointly and severally liable for the couple.Secondly by analyzing of the nature of the right are appointed,legal agent,special agent or presumption agent.In writer`s eyes the husband and wife daily family agency is a special agent,it is in common with other agent in many ways,but also has its own particularity,such recognition can deal with the relevant cases in practice,make a good use of law.It is a kind of special agent,and the author will refer to the other agents such aslegal agent,designated agentand proxy agent and special agent,so that the particularity can be more powerful to explain.At last on the right scope of the criteria for delimiting and subsequent judgment standard,the author thinks that the defined scope of the rights,we should adopt a more flexible "life needs doctrine",which can consist of more items,and then by adopting the combination of subjective and objective judgment standard,finally the behaviors that fall within the scope of adjustment will be more reasonable,the system will also function well.The second part: Through the introduction of the legislation of the daily family agency system of the husband and wife,it is pointed out that the judicial interpretation of the current Marriage Law(1)Article 17 is only embodied in the spirit of the system and is not a clear expression of the system.Many of the areas need to be improved,specifically for the system does not specify whether the right system under the separateproperty system can be applied,the scope of the adjustment of the system is not clearly defined,the principles and conditions of the right are not clear,andit doesn`t concludejoint and several liability as the consequences of the behavior of the rights.The problems mentioned above are sufficient to explain the current legal provisions of our rights system embodies only the spirit,not detailed,not operational and guidance significance.The reason for this is mainly because our country's legislative study the countries such as the Soviet Union,Eastern Europe,their legislation emphasizes both men and women solve the problem and do not mention the agent between the husband and wife.And the system is derived from the husband society,their own unequal colors of men and women does not match our political ideology,not only that,before the marriage law legislation,China's economic form is simple,the provisions of the family agency is not important,the exercise of property rights can often be resolved through consultation.In our legislation,the lack of a clear provision for this system,but the introduction of this system is particularly important.First,the introduction of the system can solve the problem within the special scope of the system,to make up for the existing legal system.Second,it can be a good way to protect the right of the coupleto deal with the family affairs,improve the efficiency of dealing with familyaffairs.Finally,the husband and wife assume responsibility for the third party as the legal consequences of the legislative,which can maximize the protection of the legitimate rights and interests of the transaction counterparts.The third part: Through the introduction of foreign and Taiwan`s daily family agency system.According to the right subject,the scope of the exercise of the principles and restrictions on the law and the consequences of legal provisions of these countries and regions of the husband and wife of the daily family,the writer try to give some advice for the system,which is based on the relevant laws and regulations obtained from the relevant provisions of these countries and regions.The author holds it that the main body of the right of marriage agents should be husband and wife who are admitted by law.And how about the people thatdo not register but recognized by the law,the author think we candraw on the practice of the French practice of the family agency systemin order to promote the transaction,to maintain the security and stability of the transaction.And for the divorced men and women even if the need for raising children should not apply the system,because they can solve the problem by adopting the corresponding relationship between parents and children.For the scope of application of the right,the writer advocate the views of Taiwan scholars Shi Shankuan,mining "broad sense",not only limited to basic necessities,allowing special circumstances will be imposed on the real estate which is also included in the scope of the right.In addition,for the scope of the application of the agreement,I believe that we can take the "French Civil Code" and the practice of Taiwan,that is,first put forward a scope in general,and then take a list of the scope that are not suitable.For the exercise of rights,the writer holds it thatthe exercise of right only wokeout during the duration of the marriage exercise,does not apply to the separation period.In the exercise of the process,one party should take reasonable duty of care,if the agent abuse the right of agency,take unauthorized action and cause other improper damage,the agent's spouse may restrict his/her proxy,but such a restriction can not be against a goodwill third party unless the third person has learned such restrictions in a certain way.For the consequences of the exercise of the power,the spouse of the agent is usually jointly and severally liable for the act of the spouse exercising the proxy.In exceptional circumstances,if the spouse of the acting party does not fulfill the duty of care,the exercise of the exercise of the other party is not subject to the approval of the other party and does not comply with the representation agent,or the husband or wife limit the authority of the other party,and the third person is aware of such restrictions.In the two special circumstances mentioned above,the conductor should be responsible for the behavior.And in order to protect the interests of the spouse better,we believe that we can quote the French property system,so that the agent can use his/her own property to compensate his/her spouse.