On Prokura Under Commercial Agency

In modern corporate system,with the separation of ownership and management rights,corporate governance mechanism has gradually changed to a manager-centered one.Such a change has led to expansion and abuse of the managers' right.It is quite essential to enhance the legal research of the managers' right.Since Chinese law is without a complete and clear definition of the managers' right.The legislation of commercial agency system is still at its beginning.For this thesis,it is believed that managers' right consists of the inner power(manager power)and the external proxy(prokura).Chinese law has only specified the manager power without any provision of prokura.Compared with Germany,Japan,and other countries,our legislation should pay attention to prokura.The role of manager should returns to agent.For this thesis,prokura is the common part between Commercial agency and Managers' right.Prokura is essentially a kind of commercial agency.Prokura needs to be granted,this thesis analyzes the nature and way.Prokura does not deal with a particular transaction,but a generality of authorization.The law should not limit prokura too much,which is mainly focused on estate.The company is also restricted by the constitution of company.Both civil law countries and Anglo American law countries are similar in the protection of bona fide third.The manager's violation of the relevant restrictions requires legal responsibilityThe newly-enacted Clause 170 of General Principles of Civil Code of the PRC has provided us with“ dutiful agency”.Such a clause is deemed to be a general stipulation in commercial agency,which includes prokura,commission,trade assistant's agency.Clause 43 of the General Principles of the Civil Law has the ambiguity of “duty behavior”.The agency of dutyand representation behavior is distinguished in this clause.Besides,the ultra vires act of manager has no effect on bona fide third.This has strengthened the protection of the third party and helped to enhance the efficiency and safety of the transaction.Although the Clause 170 of General Principles of Civil Code is progressive,the clauses are too general and need detailed interpretation.The detailed provision of managers' right in The General Principles of Commercial Law is a best choice for legislation.This thesis also includes some statements of the manager right system specified in The General Principles of Commercial Law.