| In the construction industry of our country,there is a large number of registered behaviors,and the people who are affiliated to the enterprises are paid management fees and are contracted to work in the name of the people.In the construction process,the affiliated person because of the construction needs,will be foreign trade,leasing construction equipment,construction materials.In the process of sale and lease,the person who is in charge of their own interests or construction convenience will often be linked to the name of the implementation of the Act,the bond is due to default,the dispute will involve the responsibility of the person.For this kind of treatment,it is the key to determine whether the behavior of the affiliated person constitutes the representation agent in the judicial practice.Article 49 of the "Contract Law" of our country and the "Guiding Opinions on Certain Issues of Hearing Civil and Commercial Contract Disputes Under the Current Situation" promulgated by the Supreme People's Court in 2009 have provided regulations for appearance agencies,but the provisions are relatively simple and general.The lack of operability in judicial applications has led to a large number of problems in the determination of apparent agents in practice.Because different courts decide the different standards,there are a large number of appeals cases,which wastes judicial resources seriously and damages the parties.Therefore,in this paper,the author analyzes the identification of the agent estoppel in the external debt dispute in the construction project and provides the thought for the operation of judicial practice.Based on the case,this paper selects three typical cases in the construction project affiliated of the external debt dispute,and summarizes the constitutive requirements of agency by estoppel and the standard disputes of the court.Then,combined with relevant theories,the identification criteria of the constitutive elements of agency of estoppel and the constitutive requirements of the agent are summarized and sorted out.In the case of external debt dispute,the construction project should be carried out in three aspects: the appearance of the agency,the reasonable trust of the counterpart,and the accountability of the agent.In the identification of the appearance of the proxy,the appearance of the proxy is identical,focusing on the five aspects of identity,seal,express card,settlement behavior and receiving behavior.The relative standard of appearance identification is established through the determination of the appearance of the five most commonly involved agent rights.The reasonable trust of the relative person adopts the standard of "rational person" plus objective elements.The "rational man" criterion is to construct "rational man" and put it in a specific scene.Finally,the judge determines his trust according to his subjective knowledge and trial experience.The "rational man" model is the framework of reasonable trust.It is abstract.n practice,if only the rational person criterion is adopted to reasonably trust,it will cause the judge's subjective factors to be too strong,and the phenomenon of the same case will not be alleviated.Therefore,on the basis of the "rational person" model,the relevant objective factors are determined as the criteria for the determination of reasonable trust.The identification of imputability is to be introduced in the table.n terms of the determination of the agency in the case of the construction project of the external debt dispute,because of the nature of the act and the illegality of the act,it is the fault of the person to be hanged on his own behalf,so it should be assumed that it is reducible.From judicial practice,this paper in view of the construction project affiliated foreign debt disputes where the agent system identification problems,from the constitutive requirements,the standards were analyzed,and the establishment of ostensible agency recognized in the field of the standards,in order to solve practical problems. |
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