Practical Research Of Apparent Agency

Apparent agency is a special system in civil law rules of our country.Even if the agency is unauthorized,for the purpose of protecting the security of market transactions and the interests of trust,the apparent agent still makes the act of agency effective,and the legal consequences shall be borne by the principal.A search on the website of Chinese judicial documents shows that the appeal rate of general civil cases in China in 2018 is 18.20%.If apparent agency is used as the key word to search,the appeal rate is 63.92%,which is more than three times of general civil cases.Apparent agency cases into the second trial stage will account for more than half of the total number of cases.This shows that there are great disputes in the process of judicial practice,and there are great difficulties and contradictions in the application of trialEfforts were made by the practitioners because of the difficulties in the trial of apparent agents.Local higher people's courts have issued trial guidance,expected to unified trial standards.At the same time,it also helps the judge deepen the understanding of apparent agency and get a more reasonable judgment.In view of the controversy over the system of apparent agency,the academia has mainly discussed the separation of civil and commercial affairs and the imputability element in recent years.The separation of civil and commercial means to adopt different trial methods and judgment rules for civil and commercial apparent agency cases based on the particularity of the existence of commercial agency.The imputability element is to examine whether the principal is at fault for the generation of agency.If there is no fault,it will hinder the occurrence of apparent agency.Based on the academic discussion on the separation of civil and commercial affairs and the elements of accountability,and combined with the understanding of the court system on the apparent agency trial,this paper makes a statistical analysis of the judgments in Sichuan province in recent years.In order to discuss the feasibility of introducing the separation of civil and commercial affairs and the imputability element,the element factors of apparent agency are counted in case statistics.This paper is divided into six parts.The first part is the introduction,including the practical background and literature review.In terms of the institutional value of apparent agency,this paper summarizes the research trends in the field of apparent agency in recent years,and finds that the separation of civil and commercial affairs and the imputability element are of certain value to the solution of practical difficulties.The second part is the research design,which explains the data sources of statistics in this paper,and extracts the key elements from the practical guidance to conduct statistical analysis of sample cases.The third part is the basic situation of apparent agency cases.It is found that the number of apparent agency cases in civil and commercial affairs is about 1:7.1.The average appeal rate of civil and commercial apparent agency is 62.77%,much higher than that of general civil cases.In the field of dispute,the commercial apparent agency cases are concentrated in the field of construction,while the civil apparent agency cases are scattered,mainly focusing on the confirmation of housing ownership and private lending.In addition,it is found that in the way of litigation,the litigation is initiated by the counterpart as the plaintiff in the commercial apparent agency,and there is still the case of the principal as the plaintiff in the civil apparent agency cases.The fourth part is about the appearance of rights.It is found that the apparent agency of commercial cases has its particularity compared with the apparent agency of civil cases in the aspects of agent identity,contract form,interest relevance and transaction relevance.The evidence of appearance of civil apparent agency case is lack,but it has the characteristic of kinship agency.The fifth part is the elements of subjective elements,including the goodwill opposite party and imputability.In the statistics of the opposite party,it is found that the element has the tendency of appearance element in the actual trial,and there is a lack of independent investigation.It is found in the statistics of the imputability element that the apparent agency cases of commercial affairs have several ways of imputation,such as management imputation,authorization imputation,hanging and transferring imputation.In civil apparent agency cases,due to the influence of kinship agency,it is not feasible to introduce the imputability element.The sixth part is conclusions and Suggestions.Civil and commercial separation can adopt a different way to hear,based on big differences between civil and commercial apparent agency cases.The apparent agency of commercial affairs should adopt strict standards for the recognition of appearance element,and assume that the relative party of commercial should have a higher duty of care and a clear distribution of the burden of proof.However,civil apparent agency adopts lower standards for identification of appearance element and duty of care,and shall makes a concrete analysis of overall case performance.In terms of the introduction of imputability element,it can be introduced into the judgment of apparent agency of commercial affairs according to the principle of risk imputation and the criterion of "factors within the scope of risk".Because of the existence of kinship agency,it is not feasible to introduce the imputability element.In the form of improvement,it is suggested to absorb the trial guidance of all provinces and localities to form a unified and operable judicial interpretationThe clarity of the system of apparent agency not only contributes to the judicial trial,but also guides people to standardize the establishment of relevant legal relations and guide the parties,the principal and the other party to conduct honest transactions.In the process of judicial practice,apparent agency cases has become more controversial,bring difficulties to the trial.In 2018,The appeal rate of general civil cases in China was 18.20%,nevertheless,The rate of apparent agency cases was 63.92%.The appeal rate of apparent agency cases.That's about four times as many as general civil case.More than half of the cases entered the second trial stage.The reason why the trial of apparent agency is contradictory and difficult is that lies in the tendency of system value and the lack of clarity of legislation.It is expected that this paper will contribute to the progress of the rule of law in China.