On The Distribution Of Burden Of Proof Of Apparent Agency In China

The distribution of burden of proof is the key content in the implementation of the agency system,and it is closely related to the smooth development of the lawsuit and the fairness of the adjudication.At present,the apparent agency system in our country lacks clear rules of distribution of burden of proof in the legislation,and the judicial application also presents a chaotic situation,which not only affects the proper application of the agency system of prima facie.And there will be more co-adjudication of different adjudication results.Can self-attribution be incorporated into the constituent elements of the system as the object of the burden of proof in the apparent agency system? How to analyze the distribution of burden of proof from the constituent elements of agency? And how to weigh the burden of proof between myself and the relative.Questions? With the aim of solving the above problems,this paper aims to find a rule of distribution of burden of proof,which is more suitable for the purpose of apparent agency system and takes full account of the burden of proof of both parties through the analysis of entity and procedure.It provides some theoretical reference for the current judicial practice.The paper is divided into four parts.The first part,the constitutive elements of the agency and the theoretical content of the distribution of burden of proof.There are general constitutive elements and special constitutive elements as to the constitutive elements of prima facie agency.One of the special elements of the theory,academic circles have two theoretical views.The "single element theory" emphasizes that there is only a right representation which makes the relative person trust,while the "double element theory" emphasizes that in addition to the appearance,the subjective fault of oneself should also be taken into account.In order to ease the conflict between the two,the compromise element theory came into being.This theory can better solve the dispute between the two theories and emphasize that I have the right appearance.Attribution should be the constituent element of the agency system.There are three points about the opinions of the parties and the key points that the parties argue about,that is,whether they have the appearance of the right to make the third party trust,whether the relative party is subjective good-natured and free of fault,and that there is no fault on the part of the other party.Whether or not the appearance of the principal is attributable to the appearance of the appearance,and whether the two are related or not.The above three points are the key to the distribution of agency burden of proof.The second part,the legal norm of the agency and the distribution of burden of proof in our country.As far as the legal norms are concerned,the legislation of the apparent agency system in our country is scattered in the General principles of Civil Law and the General principles of Civil Law.On the other hand,the distribution of the burden of proof of the apparent agency is mainly based on the interpretation of the general proof rules in the 2015 Code of Civil procedure and the issues concerning the hearing of civil and commercial contract disputes in the current situation,promulgated by the Supreme people's Court in 2009.Guidance as a normative basis.Through sorting out the legislative norms of apparent agency and its distribution of burden of proof,this paper reflects the constitution of the representative agency system at the current legislative level in our country.The elements need to be perfected,the distribution scheme of the burden of proof of each element is obviously missing,and the burden of proof of the constituent elements of the agency is not clear and so on.The third part,the judicial practice of the distribution of burden of proof in our country.This paper introduces the typical cases in trial practice,and through the analysis of the cases,we can see that there are obvious differences and cognitive differences in the distribution of the burden of proof in different regions and even different levels of courts in the trial.After all,whether the attribution belongs to the constituent elements of the agency,whether the burden of proof of each element of the system is borne by the relative party,or the transformation of the burden of proof,the burden of proof is borne by myself on the corresponding elements.Different courts adopt different judgment criteria,which leads to different judgments in the same case.Pass On the basis of the analysis of the distribution of the burden of proof in the case,we can conclude the reason of the distribution of the burden of proof in the judicial practice,that is to say,the establishment requirement of the agency is too principled,and I can prove the absence of the rules of attribution proof.There is a lack of uniform and clear legislative provisions in the aspect of proof.The fourth part,the consummation of the distribution rules of agency burden of proof in our country.It is the core of the distribution of the burden of proof that the appearance of the right,the attribution of the principal and the bona fide non-fault of the relative person are the three main elements of the appearance of the prima facie.In terms of the appearance of the right,the relative person should bear the burden of proving the objective facts of the right representation.In the elements of attribution,the principal should bear the burden of proof that the appearance of the right is not related to the appearance of the right.In the elements of bona fide non-fault of the relative person,I should bear the burden of proof for the non-bona fide or the existence of the fault of the relative person.As far as the third party is concerned,I certify that the relative person knows It is relatively easy for a reasonable person to be malicious,or to fail to fulfill his due obligation to review.Moreover,in the absence of any evidence to the contrary,the relative person is presumed to be bona fide and free of fault.