Study On The Principal's Imputability Of Constitutive Requirements Of Apparent Agency

The dispute on the constitutive requirements of apparent agency has been a long-standing issue in the theoretical community.As early as 1999 when the "Contract Law" was in the drafting,whether to establish the elements of the principal's fault had resulted in disagreement and therefore formed two kinds of views:“the single requirement theory” and “the dual requirements theory”,the 49 th article of the "Contract Law" expressed the constitutive requirements of apparent agency in a highly abstract way: " the other party has grounds for believing that the said person possesses agency power”,which resulted in fierce disputes both on legislative and interpretation.Because of the inherent limitations of fault elements,it is impossible to balance the interests of the principal and the relative person.Some scholars proposed that the concept of " fault " should be replaced by the concept of " imputability ",which developed “the dual requirements theory”.Compared to “fault",the concept of "imputability" was supported by many scholars for its superiority.Therefore,during the drafting of the “General Principles of Civil Law”,many scholars proposed to confirm the imputability element to settle the controversy and confusion in both theoretical community and judicial practice which brought by the abstract legislation.The draft of the "General Principles of Civil Law" stipulated three kinds of exceptions for the apparent agency,which excludes the situations in which the appearance of the agency was not caused by the principal.It seems indicate legislator adopt “the dual requirements theory”.However,the "General Principles of Civil Law" had delete the proviso finally and followed the "Contract Law".The main content of this paper is to demonstrate whether we should take the principal's imputability into account,and which kind of criteria should be used to explain and construct this element.This article is divided into three chapters in addition to the introduction and conclusion.The first chapter is about the regulations and controversies regarding the principal's imputability of the representation agency.First of all,through the interpretation and analysis of Article 49 of the "Contract Law",the constitutive requirements of the apparent agency are found that its expression is highly abstract and vague,and it does not clearly indicate whether the establishment of apparent agency needs the principal's imputability.Then through an analysis of the proviso,it was found that the expression of proviso was not precise enough.Therefore,the deletion of the proviso does not indicate that the legislator has abandoned the principal's imputability.Secondly,put forward my own opinion based on the analysis of foreign legislation.French support“the single requirement theory” and proposed that the reasonableness of reliance of relative person is the only element for apparent agency,its unnecessary to take the principal's imputability into account,while Germany and Japan support “the dual requirements theory”and proposed that the adverse legal consequences should only be borne when the person is at fault for the appearance of agency.Germany and Japan emphasize the imputability element.As for French,the Supreme Judicial Court has stated that they only judge apparent agency from the perspective of relative person,but they deny the establishment of apparent agency if the principal is not related to the appearance of agency.Therefore,whether these countries acknowledge the imputability element or not,they have to evaluate and consider it in judicial practice.Last but not least,discuss the necessity ofestablishing the principal's imputability element from other aspects,like legal interpretation,foreign legislation,legal principles,and the responsibility-bearing approach.The second chapter mainly discusses the criterion of the principal's imputability.Although the principal's imputability has been supported by more and more scholars,there still exists intense dispute about which principle should beused as a criterion for the principal's imputability.Therefore,it became the focus of this article.Some scholars advocate fault principle;some scholars advocate principle of cause,which requires that there exists certain relevance between the principal and the appearance of agency;Some scholars advocate principle of risk,that is to determine whether the emergence of the appearance of agency is due to the factors within the scope of the principal's risk;others advocate a comprehensive measure of all factors.Through the analysis of the principles of imputation from the perspective of theory and judicial practice,and the similarity between apparent agency and bona fide acquisition,its more reasonable to use the principle of risk to determine the obligation body,and distribute the risk in a rational way.The principle of risk includes three aspects:whether the behavior of the principal creates unnecessary risk,and who is more capable of controlling the risk and how to be more fair.Establish the imputability with the principle of risk can be justified in the legal ethics,and urge the risk-taking body to fulfill the obligation in a timely manner,which can reduce apparent agency in an economical and effective way.The third chapter is about the type analysis of the principal's imputability in the judicial precedent based on the risk principle.After the searching and reading of many cases,apparent agency was classified in this article according to the reasons,and the principle of risk was used to analyze the principal's imputability of each type.In the analysis of the jurisprudence,there is an overlap between the principle of risk and fault.In some cases,both of them can reach the same conclusion.But the principle of risk is more stringent than fault and can solve problems which cannot be solved by theprinciple of fault.When it is difficult to determine fault in some cases,the principle of fault cannot be applied,which shows the superiority of the principle of risk.The person should perform the obligation of preventing risk if the appearance of agency formed in his risk areas,otherwise he should bear the adverse legal consequences.Therefore,using the principle of risk as a criterion to judge the principal's imputability is more reasonable than the principle of fault.