On The Elements Of Personal Imputation Of Apparent Agency System

Due to its special behavior form,apparent agency is widely used in the field of contract in real life.However,the debate on the constitutive elements of apparent agency in academic circles and judicial application has never stopped,focusing on whether the apparent agency needs personal imputation.It is divided into three viewpoints: "single element theory","new single element theory" and "double element theory",as well as the corresponding judicial judgment viewpoint and legal interpretation position.The basic viewpoint of "the theory of single elements" is whether the apparent agency is established or not,mainly depends on whether the relative party has no fault in good faith,but not whether he has the fault or not.In the legal practice of our country,the judgment cases which hold the "single element theory" are in the majority position.At present,all the cases involving apparent agency in the bulletin case hold the "single element theory".The basic view of the "dual elements theory" is that the apparent agent in the measurement of the protection of interests is at the expense of the agent at the expense of his own freedom of ratification and should therefore be strictly applied.Not all acts which have a legal appearance can be regarded as surrogate agents.Although "the theory of double elements" has become a powerful theory and occupies the mainstream position in the academic field,in recent years,in practice,courts do not often use the "dual elements theory" to identify the constitutive elements of agency.Only in the decisions of the above-mentioned individual courts shall the elements of this finding constitute apparent representation be applied.The basic viewpoint of "New single element Theory" is that the trust actor of the third party in good faith enjoys the right of agency without fault,and the relevant factors of his own are included in the reasonable trust of the third party in good faith.In the judicial practice,the application of "new single elements" is also very few.The three theories of apparent agency and the dispute of judicial application focus on the issue of personal imputation.Through the comparison and arrangement of the different rules and theories about the identification of the imputable elements,this study mainly adopts the comparative analysis method to find out the common understanding or the difference of the identification of the imputable elements in various countries.At the same time,by using the empirical analysis method,through the analysis of the relevant cases of the identification of the imputable elements,the paper makes a quantitative study on the identification of the imputable elements,and summarizes the beneficial experience and the existing practical problems in practice.With regard to the apparent agent,of personal imputation the extraterritorial legislation is worthy of reference and comparative study.In the countries and regions of the Civil Law system,the rights provided for in articles 170 to 173 of the German Civil Code appear to be due to the fact that they have not withdrawn the notice of authorization or the authorization in a manner sufficient to make known to the counterparty of the transaction,Or the fact that no authorization has been made at the time of giving an authorized notice is due to our own reasons and that I am usually at fault,so German Law emphasizes personal imputation.The French Civil Law in the apparent agency structure has no longer emphasized personal imputation,France's Supreme Court held that as long as bona fide third party has reasonable trust,even if the principal has no fault still bear the legal consequences.Articles 109,110 and 112 of the Japanese Civil Code respectively provide for the three types of surrogates.The purpose of article 109 is that the principal did not grant the agent power of attorney,but he made to the opposite party of the transaction what appeared to have been granted to the acting agent,then the principal himself should bear the same responsibility as the agent with the right to act.The purpose of Article 110 is that a person who grants his agent the right of attorney for the purpose of trusting an agent shall bear the responsibility corresponding to that trust in respect of the agent in whose authority the agent is duly trusted.After the agency power given to the actor is eliminated,the situation that the actor and the third party carry out the act of agency is stipulated in Article 112.Articles 107 and 169 of the Civil Code of Taiwan region of China provide for the surrogate agency system.There is a great dispute between the theoretical and practical circles on whether or not they need personal imputation.In Anglo-American Law,the composition of apparent agency must have three elements: the declaration of the person concerned,the trust of the relative party in the transaction and the transaction between the relative party of the transaction and the actor because of this trust.The apparent agency system in Anglo-American Law system regards personal imputation as an independent component.Returning to the provisions of the current law of our country,there are three points of view on the legal interpretation of the imputation of Article 49 of the Contract Law.The first is the interpretation position of "not considering the personal imputation of oneself",which is confined to the interpretation of literary meaning,and has great theoretical defects,so it is difficult to justify itself in the interpretation of the system.The second is that "personal imputation" is the interpretation position of the essential constituent elements of apparent agency.Although the interpretation position accords with the general legal principle of the principle of fault,the interpretation is too complicated to be judged in practice and is not worth adopting.The third is the "personal relevance" instead of " personal imputation " interpretation position,which combines the interpretation of meaning and the purpose of interpretation,balancing the interests of the parties between the relationship,is the best mode of interpretation.The conclusion of the thesis is that personal relevance to replace personal imputation as the constitutive element of the form of representation in accordance with the 172 th of the general principles of Civil Law,Contract Law 49 th and the relevant judicial interpretation of the literal and judicial practice,and according to this interpretation of the provisions of the Act is still the scope of legal interpretation,and does not exceed the legal literal,it is the best solution to solve the status of the personal imputation in the apparent agent,and it is suggested that the Civil Code Contract should be clarified.