Research On Liability Of The Unauthorized Agent In A Narrow Sense

Before the promulgation of the General Provisions of the Civil Law,the rules of unauthorized agent liability in a narrow sense in China were mainly scattered in article 66 of the General Principles of Civil Law,article 48 and article 58 of'the Contract Law,and the judicial interpretation of the supreme people's court.Although related content have been mentioned,because of its articles described general,provisions are too principle,lack of maneuverability,resulting udges give up using the special rules of the unauthorized agency with the help of apparent agency instead.Under this kind of remedy is a clear breach by agent means freedom,in the long term will cause damage to the judicial authority.Article 171 of the General Provisions of the Civil Law improves the system of the unauthorized agent in a narrow sense,especially in the third and fourth paragraphs of this article,which determines the form and range of liability of the unauthorized agent in a narrow sense and fills the gap in the original legislation.Although the legislator realized the inadequacy of the original legislation and modified and improved it,the expression was too vague from the form of the unauthorized agent liability in a narrow sense,the constitutive elements and the limiting factors of the application of liability,to the specific assumption of liability,and there were differences in the interpretation theory,which caused some obstacles to the judicial practice.Seeking a solution of conform to the judicial practice,must be systematic and reasonable explanation.Through systematic interpretation,comparative interpretation and other methods,combined with judicial practice,from the perspective of balancing the interests of the parties concerned,this paper sorts out article 171 of the general principles of civil law,and gives a reasonable explanation for the controversial issues in the narrow sense of unauthorized agent responsibility,which provides some constructive references for our legislation and judicial practice.This paper is analyzed through four parts.The first part is a general description of liability of the unauthorized agent in a narrow sense.Through a concept of the unauthorized agency,foreign legislative cases of the unauthorized agency system and natureliability of the unauthorized agent,the nature of the liability in different theories are discussed,and the liability for guaranteeing the legal conclusions,this special unauthorized agency liability imputation principle and the constitutive requirements,in order to further explore legal basis narrow unauthorized agency system in China.The second part is the responsibility of unauthorized agent in narrow sense.By sorting out the second and third paragraphs of article 171 of the general principles of civil law,this paper discusses the liability bearing system of unauthorized agent in the narrow sense from the aspects of limiting factors,forms and scope of liability.It clarifies the liability constitution of unauthorized agency system and the basic principle of exemption of liability,and provides a theoretical basis for why counterparts can claim unauthorized agency responsibility under the circumstances.It also makes a theoretical explanation of the distinction and transformation between the apparent agency system and the narrow agency system.From the perspectixve of interest measurement,this paper expounds the rationality of the responsibility way of giving the bona fide counterpart the right to choose and setting up the interest to perform.The third part is the legal status and existing problems of unauthorized agent liability in the narrow sense.Expounds and analyzes the actuality of our country legal system,the responsibility for our country present stage special agent has no right to the applicable law in the legislative defects and judicial problems discussed and find the other party in good faith that there is ambiguity,special agent has no right to unclear responsibility specific scope,setting the fourth paragraph of this article is with the third kind of contradiction and so on.The fourth part is the legal explanation and modification of the unauthorized agent liability in the narrow sense.From the multiple perspectives of interest measurement and interpretation,combined with foreign legislative cases and systematic interpretation,this paper analyzes the goodwill of the counterpart in unauthorized agency,and puts forward judgment criteria for the"goodwill"of the counterpart in article 171 of general principles of civil law.By means of comparative interpretation and theoretical interpretation,this paper makes a clearer explanation of the specific scope of liability compensation and whether the subjective state of unauthorized agent can be used as the basis for the distinction of the scope of compensation,and explains and supplements the loopholes in the articles so as to make them conform to the legal value of justice.The theoretical basis of the fourth paragraph of this article is identified as liability for culpa in contracting,and by expounding the applicability of liability for culpa in contracting and the significance of judicial practice,it is proved that the liability of unauthorized agent in narrow sense includes legal guarantee liability and the concurrence of claims for liability for culpa in contracting...