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The Interpretation Of The Article 172 In General Provisions Of The Civil Law

Posted on:2019-02-11Degree:MasterType:Thesis
Country:ChinaCandidate:J J ZhongFull Text:PDF
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The promulgation of China's "General Principles of Civil Law" is a new milestone in the history of China's civil legislation,which reflects the achievements of China's civil law legalization.The legislative expression of Article 172 of the Act,for the first time,confirms the representation agency system in the general text of the Civil Code,and has overall guiding significance for civil legislation,judicature,and law-abiding.Previously,the representation agency system was only stipulated in Article 49 of the Contract Law.Article 172 of the "General Principles of the Civil Law" does not make much improvement on Article 49 of the "Contract Law".Basically,it is a copy of the original text.Therefore,after the promulgation of the "General Principles of the Civil Law," it shall apply to the legal provisions of the representation agency.Still need further explanation to guide the use of civil law and judicial practice.The representation agency system has theoretical and practical significance for civil law.The representation of the agency agency system is relatively vague and has some influence on the operability in practice.It will lead to the judicial practice in our country.The referee has uncertainty.This article summarizes the conditions applicable to the representation agency system in Article 172 of the “General Principles of Civil Law” from the relevant legislation and judicial interpretation in China and related judicial practice cases.This article has seven chapters.The first chapter elaborates on the significance of the topic and expresses the development status of the representation agency system from the "Contract Law" to the "Civil Law General Principles",as well as relevant legislative and judicial interpretations.It also analyzes the representational agency system for current judicial practice.The impact and existing problems.The second chapter is about the foundation of the system of the representation agency and its institutional value,expounding its significance and function,and providing its principle factors that should be considered by judges in judicial practice.The third to fifth chapter focuses on the analysis of the components of the apparent agency,including the necessity,characteristics,and considerations of the representation of the representation of the agency.The appearance of the appearance of the authority is used as the applicable precondition of the representation agency system and has the objective basic attributes.The existence of objective facts should be characterized by perception,which is characterized by diversity,continuity,and stability.The consideration of this constituent element should be based on the circumstances of individual cases,and comprehensive consideration should be given to whether the characterization ability can be recognized by general rational people.Whether it can be reasonably trusted by people in good faith.In addition,it contains the meaning and necessity of relatives' goodwill,and analyzes the types of considerations.Goodwill includes the elements of no fault,referring to the fact that the relative does not know the agent's right to the agent,or does not believe it,or trusts it.With reasonableness,this requirement is the subjective moral justification of the agency system.It is used to judge whether the relative person's trust is reasonable or not.It also needs to refer to many objective environmental factors.Finally,it discusses in detail the conditions of attribution and controversy by the agent,and contrasts the practices of traditional civil law countries such as Germany and France.It is considered to be a kind of interest relationship between the agent and the benevolent counterparts.For the principle of judicial fairness and the autonomy of private law,it is necessary to introduce the factor of imputability,while for the judgement of imputation of the surrogate,the author believes that the principal of risk is the principle and the principle of fault is the supplement.The sixth chapter is to discuss the related issues concerning the application of the representation agency system in China and the circumstances that should be taken into account.When the law still fails to detail the judicial application standards of the agency,the legal principle of the system is used to carry out justice.The referee is quite necessary,and the appearance agent should strictly recognize and follow the principle of modesty.In terms of application,reference standards for classifying cases should also be uniformly identified.Case determination should be carefully examined and strictly determined.The last chapter is the concluding part.It considers the problems existing in the representation system of our country and the ways to solve them.We also rethink the "General Principles of Civil Law" before the promulgation of the draft part of the agency,and carry out the investigation of its part.The analysis will make a general outlook on the future breakdown of applicable standards in the agency system.
Keywords/Search Tags:General Principles of Civil Law, representation agency, interpretation theory, legal application
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