Research On The Responsibility Of The Unauthorized Agent To The Bona Fide Relative Person In The Narrow Sense

On October 1,2017,the General provisions of the Civil Law of the People's Republic of China came into force,in which Article 171 stipulated the civil liability of unauthorized agents and filled in the gap in Article 48 of the contract Law.However,although paragraph 3 adds the content of responsibility and scope of responsibility,there is a vague expression,and there are no provisions on the constituent elements of unauthorized agency and the reasons for exemption,which makes the application of this article difficult in judicial practice.At the same time,although Article 171 of the General provisions of Civil Law draws on Article 179 of the German Civil Code and Article 117 of the Japanese Civil Code,this article still is vague.In addition,there are different views and interpretations on whether the scope of liability of unauthorized agents is to perform interests or trust interests.Therefore,the study of Article 171 of the General provisions of Civil Law is very important.With the development of economy,more and more people choose agent mode to save their own time,to get more benefits,and the number of unauthorized agents is also gradually increasing.In judicial practice,the unauthorized agency system is difficult to apply.By summing up the relevant cases of unauthorized agency,this paper sums up that the main problems existing in practice are that the court is more inclined to apply the agency by estoppel,which is more clearly.Even if it is not authorized to represent the case,the court still has different determinations on the validity of the unauthorized agency contract and the liability content of the unauthorized agent.In view of these problems,this paper begins with the analysis of the history of the unauthorized agency system,and clarifies the establishment of this system in the General provisions of Civil Law,objective to provide the basis of purpose and value for the following analysis.In view of the nature of unauthorized agency liability,this paper analyzes different theories and discusses the nature of legal guarantee liability.The liability of unauthorized agent originates from the preparation of law,but this does not mean that the contract signed by unauthorized agent is bound to be valid by law.The effect of unauthorized agency should depend on the choice of bona fide counterpart.In the problem of liability assumption of unauthorized agent,this paper first analyzes the existing controversial theory,determines the nature of legal guarantee liability,the constituent elements of this liability,and determines the circumstances under which the unauthorized agent should bear the responsibility.At the same time,it is necessary to limit the content of "good faith" and analyze whether the fault exists in the unauthorized agency responsibility.Secondly,the mode of liability of unauthorized agent determined by the law of our country is according to the choice of the relative person,and the counterpart requires the unauthorized agent to bear the corresponding liability according to his own wishes in the actual performance and damage compensation.The clear content of responsibility is related to whether the unauthorized agent himself is in good faith or not.Final division Analyze whether there is room for the application of the exemption rules in the agent.Through the analysis of the relevant contents of unauthorized agency,this paper explains other relevant provisions of the General provisions of Civil Law,and compares them with 172 articles to explore the relationship between the two,so as to make the application of this clause clearer in practice.