Research On The Rights Of The Third Party's Choice In Indirect Agency

Article 403 of the Contract Law stipulates the third-party option in indirect agency,so that the principal and the third party can establish a direct legal relationship when the statutory conditions are met.However,there is no shortage of disputes about the rationality of the system in the academic circles.In judicial practice,the problems of the preconditions,methods of exercise,and legal consequences of rights are often recognized.In view of this,based on the inference of the referee's differences,this paper makes a systematic analysis of the third party's choice of rights,and finally puts forward relevant legislative proposals.Besides of introduction and conclusion,this paper is divided into five parts,a total of five parts' main elements of principal argument are as follows:The first part: List relevant cases and summarize the differences between the referees.Based on the analysis of the court's judgments,this part summarizes the current premise of the exercise of the rights,the mode of exercise,the legal effect of the exercise of rights and the law of the agent in the process of applying the third-party option system.There are differences in the four aspects of responsibility,and it is pointed out that the content of the article is too simple,and it is not clear that the difference between the system and the discipline system is the main reason for the divergence.The second part: This paper discusses the evolution process of the third party'schoice and analyzes the status quo of the system in China.This part first examines the origin of the third-party choice in the Anglo-American legal system,and then discusses the introduction and corresponding reservations of the third-party choice in the civil law system,and analyzes the similarities and differences between the international conventions on the third-party option.Finally,it analyzes the status quo of the legislation of the third party's choice in China,and points out that there are still three articles in China's choice system.The content of the article is simple,the system is not clear,and the relationship between the principle of contract is not accurately defined.The third part: Prove the value of the third party's choice.This part begins with the example of "buying a house by borrowing a name" in practice and analyzes the necessity of the third party's choice in the case of "borrowing a house".Secondly,it analyzes the connotation of the principle of contract relativity at the theoretical level.It is pointed out that the third party's choice is not a violation of the principle of contract relativity;finally,the third party's choice and conduct behavior are compared,and by clarifying the difference between the two,it is concluded that the two cannot be replaced.The fourth part: Refine the requirements for the exercise of rights and make recommendations for improvement on each element.First of all,it is clear that the preconditions for the exercise of the third-party option include the existence of the agency relationship,the existence of the choice,and the obligation of the agent to undertake the disclosure.It is recommended to expand the scope of the choice of thecontract law and increase the requirement that the agent not disclose.Legal responsibility.Second,recognize the existence of multiple rights exercise methods.In addition to the way in which a third party files a lawsuit in court,it is proposed to increase the requirement to exercise the right in the form of a third party's notice to the principal or agent.Finally,the point at which the third party makes a choice is that the principal or agent receives the notice from the court or receives a notice from the third party.The fifth part: The legal consequences of the third party's choice of different counterparts are discussed.If the agent is selected as the relative person,the general liability for breach of contract shall be applied to the agent,and the right to choose one of the contract defense rights according to the actual performance of the contract;if the principal is selected as the relative person,the client may also file the corresponding Defence,but the author has reservations about the rights of the client to enjoy double defenses under the current Contract Law.It is recommended to delete the provisions of the client against the third party because of the confrontation of the agent,and only retain the agent's defense against the third party.