A Research On The Accountability Of Litigant In Apparent Agency

In regard to apparent agency,the Article 172 of General Rules of Civil Law almost copies the provision hereto of Article 49 of Contract Law in our country.Therefore,it is still undefined that whether the accountability of litigant is necessary during the constitution of apparent agency.In the current laws of our country,"the counterpart has reasons to believe that the actor owns the right of agency" shall be deemed as the criteria standard of apparent agency,and this highly generalized rule causes a heated debate in academic circle.However,through the analysis of our juridical practice,accountability of litigant can be derived from the literal interpretation of the stipulation of "has reasons to believe".Hence,the "has reasons" herein is not only the description of fact level but also including code requirement on value judgment:The reliance of the counterpart must naturally be justified rather than negligent in the ordinary circumstances.Furthermore,if the right appearance cannot be attributed to the litigant,any "reliance" of the counterpart can be excluded the "reasonable" scope,and cannot constitute "has reasons to believe".It shall be noted that there is strict affirmation on "has reasons to believe" during juridical practice.It embodies one type of value orientation:when paying attention to protect the reasonable reliance of counterpart,the interest of litigant needs also to take into account,and the accountability of litigant can realize this purpose.Consequently,the constitution of apparent agency shall contain accountability of litigant.In terms of the issue of the legitimation of my accountability of litigant,firstly,for its criteria standard,the most appropriate approach is to adopt risk imputation principle and provide explanation and concrete construction.Secondly,this principle has dynamic characteristics,which can realize certainty based on concretization.There are mainly three criteria standards:Firstly,whether the litigant creates unnecessary risks;secondly,the litigant shall be compared with counterpart,to determine who is more likely to control the risk of generating the right appearance.Thirdly,which side shall bear the risk to conform to the equity principle?Besides,in terms of specific establishment of accountability of litigant,its primary performance lies in the truth of appearance for enjoying or continuously enjoying right of agency of others caused by personal behavior.While the personal behavior has two patterns of manifestation including positive action and passive inaction.Specifically,(1)the litigant has accountability when making an unreal authorization representation to others.(2)The litigant has accountability when an external authorization had been issued to the counterpart without being withdrawn,even if this authorized behavior is invalid or later revoked.(3)The litigant has accountability if the litigant knows that another person has no right to act,but not deters.(4)If the litigant do not know that others act in their own names,which cannot be generalized,but the litigant shall distinguish the specific situations,namely whether having the accountability to judge.Meanwhile,even though the litigant owns no accountability and is unnecessary to assume positive trust protection responsibility,the litigant may still assume negative trust protection responsibility,to realize comprehensive balance of all legal consequences.Furthermore,the judgment on apparent agency emphasizes the affirmation on reasonable reliance elements of counterpart.Therefore,the integrated balance on reasonable reliance between accountability of litigant and counterpart,to realize normative intention for system of apparent agency.However,the affirmation on the bona fide elements of counterpart can be judged by combining with duty of care review of counterpart under the specific objective situation.Specially,it mainly includes three types,namely objective situations which are unnecessary to investigate,objective situations which need appropriate review in accordance with certain trading practices,and objective situations which are doubtful and need thorough examination and verification.In the above specific situations,the duty of care in varying degrees of counterpart shall be prosecuted by combining with the judgment on accountability of litigant.