On The Legal Application Of The Constituent Elements Of Apparent Agency

Regarding the Apparent Agency,the Article 172 of General Provisions of Civil Law still continues the provisions of Article 49 of the Contract Law,and doesn't provide clearly whether the elements of Apparent Agency should include the imputability of the principal.The provision in the article that “there are reasons to believe that the actor has the agency right” is too vague,resulting in the inconsistent standards for judging the constituent elements in judicial practice.Therefore,the purpose of this article is to combine the viewpoints and foundations of theoretical and practical circles to determine the constituent elements of Apparent Agency and to sum up the identification criteria and influent factors of each element,aiming at solving the legal application of Apparent Agency.In the civil law community,there are three doctrines of the composition of Apparent Agency.They respectively are “Single Element Theory”,“Double Element Theory” and “New Double Element Theory”.The latter two doctrines support the agent's imputability as the constituent elements of Apparent Agency,but the criteria for the imputability are different.The former supports the “Fault”and the latter believes that the criteria of “Fault” should not be the principles.This paper talks about the differences between Germany and France on the elements of imputability,and concludes that imputability as a element of Apparent Agency is feasible and justified from the interpretation of the provisions and principle of Civil Law.For the appearance of the agent right,this article combines judicial precedents and considers that in addition to the documents,the following factors can also prove the existence of the appearance of the agent right: the special identity or relationship;the nature of applicable seals;the location and environment of the occurrence of agency behaviors and the trading habits,etc.For the actor's good faith and no fault,this paper starts from a case and analyses the inconsistencies in the conclusion of the same case caused by the court's different standards when judging this element.Through the existing theories and comparative laws,this paper believes that when judging this element,the method of combining the“the appearance of the agent right plus other objective environments” should be adopted.Among them,when there are the following circumstances,the counterparty should pay due attention to them and carry out the review and verification: no behavior inconsistent with the transaction practice;the behavior of the actor is involved in large-scale or real estate transactions;the right appearance of the document is suspicious;the trading identity of the counterparty,such as long-term engagement in the same transaction.At the same time,with regard to the burden of this element,on the basis of pointing out the principle of standardization and combining the views of the existing scholars,it is believed that the principal should bears the burden of proof that the counterparty is not in good faith.Finally,based on the assessment of the existing theories and the summation of existing cases,the paper proposes to use risk principles to judge the imputability of the agent and through type analysis,the principle of risk is detailed and refined to achieve the operability of the principle.Specifically: 1.When the principal has made an authorized statement,notice or announcement,the principal has imputability;2.The principal has not authorized the representation,notification or announcement but knows that there is no right to act but does not prevent it,the principal is liable for imputation;3.The principal has not authorized representation,notice or announcement,the principal is not aware of the existence of an unauthorized act and the representation is based on the meaning of the principal,the principal is liable for imputability;4.The principal has not authorized representation,notice orannouncement,the principal is not aware of the existence of an unauthorized act and the representation is not based on the meaning of the principal,in general he has no imputability.However,in commercial transactions,more emphasis is placed on transaction security and transaction efficiency.Even if it is not based on the meaning of the principal,it is also imputable.At the same time,this article compares and analyzes the purpose of the Apparent Agency and the difficulty of proof and then points out that the principal should bear the burden of proof that he/she/it has no imputability.