Research On Judicial Application Of Apparent Agency

The apparent agency is an important system to maintain transaction security and protect reasonable trust,which plays a decisive role in the development of modern economic society.Since the implementation of China's reform and opening up policy,with the rapid development of market economy,our country's system of apparent agency had made great progress,but there is a great distance away from the demands of the development of market economy,and there are some unsolved problems.First of all,our country has been pursuing extensive legislative models for a long time,as a result,there are many principle clauses of the apparent agency system,and some provisions are lack of operability.The legislative spirit embodied in the general principles of civil law runs through the whole process of civil legislation,so it is understandable that its contents are mostly in principle.However,the provisions of article 49 of the contract law of our country are relatively abbreviated and unreasonable.Such as about whether the principal' account is the components of the apparent agency,the meaning of the legal provisions tends to negate it as a separate component,but if the sentence according to this standard(the court has a lot of these decisions in our country),it will cause the abuse of the apparent agency,the verdict is rather unfair,and it's difficult to eliminate the contradiction,the relevant judicial interpretation also didn't make a scientific and reasonable explanation and put forward effective solutions.Academic circles formed "single element theory" and "double elements theory " about the principal's account,the former emphasizes that it's not need to consider whether the principal has fault,the latter emphasizes that the principal should have faults,but each has both advantages and disadvantages;Secondly,whether the offeree(the third party)has option is also a question to be considered by the apparent agency system,However,it is not clearly stipulated in the apparent agency in China;Finally,about whether the legislation of the apparent agency system ignores the value orientation of civil law and commercial law,whether the general principles of civil law still holding the same pattern,and whether it can satisfy the different value demands of the civil and commercial agency system has been controversial.The development of the apparent agency system plays an important role in the healthy development of market economy.Considering that there are many problems in the existing apparent system in our country,it is of urgent practical need and important theoretical significance to study the apparent agency system and propose perfect counter measures.The author compare the continental law system and Anglo-American law system study about the theory and practice of the apparent agency system,combining with the problem of apparent agency in our country and the improvement direction,and advances some countermeasures for perfecting.The specific response is: Taking France's theory of the apparent agency as the reference object,establishing a correlation between the principal and right appearance,and this correlation is used as one of the factors that determine the reasonable trust of the offeree.Using the relevance theory to explain our current clause of the apparent agency,it will be more in line with legislative purpose and judicial status quo;Emphasizing that the offeree should not have the option to make the apparent agency system content more rational;The post agent and the apparent agency of the general principles of civil law have basically satisfied the different value demands of the civil and commercial agency system,and finally put forward some feasible Suggestions on the improvement of the post agent.