The Civil Liability Of Unauthorized Agents To The Third Party

The establishment of agency regulatory system is essential in the civil law system,which can find expression in the classic principle of party autonomy of the civil law.When the agency lacks authorization,the party's autonomy also vanishes,it is the starting point of unauthorized agency.The legal system of unauthorized agency embodies complex legal and interest relations.Among them,the way and scope of liability of unauthorized agents is of the top priority.For a long time,the regulatory system in China was considered still rudimentary.Article 171 of the General Provisions of the Civil Law carried out detailed provisions,but problems and debates in judicial practice still exist.Based on the discussion of the legal provisions and judicial practice,and an analysis of scholars' documents and comparative study of foreign legislations,this thesis proposed to give an explain to Article 171 of the General Provisions of the Civil Law in the light of the actual situation of China,especially in the aspects of the nature,requirements,ways and scope of liability of unauthorized agency.This thesis includes in the following aspects:Regards to the nature of unauthorized agents,there are several different theories among the scholars,the representatives are contract theory,tort theory,cupla in contrahendo theory,implied warranty of authority theory and legal obligation theory.After the analysis of the history,court cases as well as the merits and dismerits of each theory,I think legal obligation theory seems to be the best among the theories,which fixes the current legislation situation in China best.Regards to the constitutive requirements of unauthorized agents to the third party,different scholars hold different ideas.The opinions can be divided into three requirements,four requirements,six requirements,etc.This thesis agrees with three requirements theory,unauthorized agents take the liability only if: there is a legal act of unauthorized agency;the refusal of the principle to confirm the agency act;no withdrawal from the third party.This thesis also discusses the definition of each requirements.What's more,some scholars proposed to take apparent agency as a negative element of liability of unauthorized agency,but I think it may not obstruct the liability.The third and the most important part of this thesis discusses about the ways and scope of the liability of unauthorized agents.According to the General Provisions of Civil Law,unauthorized agents assumed to take the liability of performance or the liability to compensate the damages.The third party has the right to choose between the two kinds of liabilities.This thesis follows the legislation model of German law,found it is meaningful to distinguish between the goodwill unauthorized agents and the malice.If the unauthorized agent knows the lack of authority,the third party in good faith may choose to demand actual performance of the compensation of damages.If the unauthorized agent does not know the lack of authority,the third party may only claim for liability to compensation of damages within the scope of reliance interests.As to the issue of the civil liability of unauthorized agents to the third party,a more sophisticated regulatory system is required.It is meaningful to give legal explanations and provision recommendations to this issue,in order to ensure the stability of judicial practice and the safety and fairness to the business transactions.