Research On The Judicatory Application Of Apparent Agency In The Area Of Construction Work

This thesis tries to research into the angle of judicatory application,facing the difficulties and key points of the judicatory application of apparent agency in the area of construction work.Combining the practice of the transaction in the area of construction work with the system of apparent agency,the research intends to provide an appropriate train of thought as well as the reasonable procedures from the point of judicatory application.The thesis consists of five parts in addition to the foreword.The first part researches into the attorneyship of the agents in the area of construction work.The attorneyship of the project manager shall be determined according to the announced authorization of the construction enterprises.When there is no definite authorization occurred,the counterpart can make inferences from the statutory duty of the project manager based on the theory of commercial agency.If the attorneyship is in the scope of the statutory duty of the project manager,then the application of the apparent agency shall be excluded.Post authority is also the entry point of the judgement about the attorneyship of the staff in the construction enterprises and the actual constructor who has loose connection with the construction enterprises.If the person has no position in the construction enterprise,or one's conduct has been out of the range of one's post authority,then the condition of entrustment or other kinds of authorized agency shall be considered.A person who has no representation of authorization can invoke neither the protection of authorized agency nor the protection of apparent agency.This part of the thesis focuses on the distinction of authorization of post and apparent agency.The second part researches into the behavior of the agents in the area of construction work.Firstly,the effect of seals on the representation of authorization is studied.The seals of projects can generally be used in the production and management linked to the specific projects.During the existence of the specific projects,the seals of those projects can be combined with the representation of post and together form the representation of authorization.The seals which have limited range of application generally have effect on the specific scope.However,when the periphery of the scope is not clear enough,the seal's range of application can be extended with the ratification of the construction enterprise.On the issue of seals with controversy about applicable range due to their sources,the emphasis is that whether on file or not does not affect the efficacy of the seals.The efficacy of the project seals carvedprivately should be measured comprehensively.Once there is evidence that the construction enterprise has in fact accepted the efficacy of the seal,the seal is effective,no matter it was carved privately or it was a false one.Secondly,research is done on the efficacy of the signed documents.Estimate is made based on the representation of authorization.The post authority of the signers is an important point to distinguish authorized agency from unauthorized agency.When the act of signing is accord with the definition of unauthorized agency,the condition of apparent agency should be considered by inspecting the representation of authorization required.Moreover,the act of signing itself can participate in the formation or the disintegration of the representation of authorization,and thus become the basis for the counterpart to size up.The status of the signers as well as the extent of authorization can be inspected in terms of the signing act.If synthesized with the other factors and reached the level to get the reasonable trust of the counterparts with bona fides,the signing act may become one of the basis of the application of apparent agency.The third part studies on the act of authorization of the principal in the area of construction work.For one thing,documents and bulletin boards on construction sides that publicize the position of staff is one characteristic way of express authorization in this area,which belongs to the category of post authorization.The theory of “usual authority” and“customary authority” in Anglo-American Law can be the reference for comprehending the principle of post authorization.When there is no clear definition of the authority of the post,dispute about attorneyship can easily arise.For another,ratification is effective in changing unauthorized agency into authorized agency.Another way of implied authorization is stipulated in the General Provisions of the Civil Law of the People's Republic of China,saying that “without the repudiation of the principal who is aware of the civil act in his name,the act of agency should be considered to have obtained the principal's consent”.This way of authorization shall be put in the frame of apparent authority.At last,the measuring of virtual authorization should be strict.Based on the routine work and the role of the deputy in the transaction as well as the practical actions of the construction enterprise before the act of agency,the synthesization of factors in the cases can be a proper way.The fourth part researches into the perception of the counterparts in the area of construction work.In the part of the perception of contracting parties,if the counterpart falsely describes the contracting party as the deputy of enterprise,then there is no space for the application of agency system,let alone the application of apparent agency.If thecounterpart is aware of the basic legal connection between the agents and the construction enterprise,such as the fact of borrowed qualification and subcontracting,then the obligation performance of the counterparts should be inspected.Judges should find out whether the counterpart has taken the relevant attentive obligations and whether there has been other trustworthy representation of authorization in addition to the basic legal connections.In the part of the perception about the persons that carry the work of conclusion and performance of the contracts,judges should notice that the relevant obligations have to be taken throughout the conclusion and performance of the contracts,concerning the attention to the attorneyship and status of the agents.And rationality of the transaction act should also be taken into account.Judges should be cautious about whether the counterparts have met the requirement of “bona fide”,“unimpeachable” and have got the sufficient cause to trust the agents.The conclusions should be drawn by synthesizing all those factors together according to the facts of cases.The fifth part makes suggestions about the judicatory application of apparent agency in the area of construction work based on the analysis and exposition in the parts above.At first,the status of the implementer of agency is the point for breakthrough in the distinction between authorization of post and apparent agency.Second,it is necessary to obey the contract relativity principle so as to make accurate judgement on the relevant attentive obligations of the counterparts and the representation of authorization in the eye of the counterparts.Third,the behavioral details of the parties should be grasped,which can help to link all the facts together synthetically.Lastly,the actual perception of the counterparts deserves special attention and the statements of the counterparts needs identification.