Improvement Of Apparent Representation's Components

For the purpose of protecting transaction security and the interests of the third party,the system of apparent representation is regulated in Article 49 of the Contract Law of China.Because of the vagueness of the provision,the debates between the "Single Component Theory" and "Dual Components Theory" had been arisen in the academia.In addition,the two judicial interpretations published by the Supreme People's Court held controversial views towards the components of apparent representation.The discrepancies among the rules related to apparent representation led to the different standpoints of judges,which has induced the failure of achieving the purpose of the system and jeopardized the stability of law.In order to find an appropriate approach to decide the apparent representation,which simultaneously meet the requirements of theory and practice,this article provides a detailed analysis and reflection about the theory of apparent representation on the basis of summarizing real problems arisen from the cases and the ruling tendency of judges in 2016.By comparing with the stipulation in the Article 172 of the General Provisions of the Civil Law published in 2017,this article not only suggests that the components of apparent representation shall be the appearance of the representative's right,the reasonable trust of the third party and the imputability of the principal,but also specifies the factors which influence the formation of each component.Apart from the introduction and conclusion,there are four chapters in this article.Chapter One is for the purpose of summarizing the judgmental paths of different courts at all levels by typical case analysis and quantitative case analysis.By the quantitative analysis and summary of judges' opinions on applying"Single Component Theory" and "Dual Components Theory"while determining the formation of apparent representation,this part points out the problems of applying the provision of apparent representation in practice so as to provide practice basis for the establishment of component system.The three components mentioned above are respectively demonstrated in Chapter Two,Chapter Three and Chapter Four.Chapter Two elaborates the meaning and the independence character of the appearance of representative's right.In this part,the factors summarized by quantitative case analysis in Chapter One are divided into two parts by its influence on the formation of the false appearance,which are facts with high influence and facts with low influence.In Chapter Three,by comparing with the requirements of the third party in good faith acquisition and unauthorized representation,the apparent representation shall only be formed when the third party is in good faith without any slight negligence.The influencing factors are also provided in this chapter by the interpretation and supplement of the guidance document published by the Supreme Court of Shanghai.In Chapter Four,after introducing the related legislation of other countries and disputes in theory,this part discusses the necessity of including the imputability of the principal into the components of apparent representation and also specifies that the criteria of the imputability shall be based on the illustrated situations with "Causation Principle" as the basic principle.The conclusion of this article provides the suggestions and precautions on practice application of apparent representation under the background of the promulgation of the General Provision of the Civil Law in 2017.As the General Provision of the Civil Law shares the same expression of the apparent representation in the Contract Law,the component of the imputability of the principal shall be confirmed by a judicial interpretation so as to realize the purpose of apparent representation,which is the equal consideration to the interests of the principal and the third party in good faith.In addition to this,when trying a specific case,judges shall base their determination of the formation of each component on the listed factors,which will safeguard the stability of law and realize the justice of individual case.Finally judges shall pay more attention to the comparison between unauthorized representation and apparent representation when deciding the formation of apparent representation so as to realize the values of both systems.