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On The Normative Structure Of Duty Agency Interpretation Based On Article 170 Of The General Principles Of Civil Law

Posted on:2020-12-16Degree:MasterType:Thesis
Country:ChinaCandidate:A R LeiFull Text:PDF
GTID:2416330596980504Subject:Civil and Commercial Law
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Article 43 of the General Principles of the Civil Law of China stipulates that legal persons shall be responsible for the duties and duties of their legal representatives and other staff members.By explanation,this provision can be used as a normative basis for duty agents.However,this regulation has the following defects: in the legislative language,there is no distinction between legal liability and legal effects,which leads to the misunderstanding of the agency system and the job infringement system;on the theoretical basis,the provision can cover agency behavior,representative behavior,tort behavior,performance behavior In terms of balance of interests,this provision does not pay attention to the protection of the interests of the opposite person;from the scope of application,the provision can only be applied to corporate legal persons.The General Principles of Civil Law introduces a system of duty agency,which has obvious progressive significance both in form and in content.First,the duty agency behavior is distinguished from the duty infringement behavior and representative behavior,and the theoretical foundation is clear and the system is scientific.Second,pay attention to the balance of interests between the parties and ensure the security of transactions.Third,both legal persons and unincorporated organizations can have duty representation,which is conducive to the simplicity of civil interaction.However,the legislative language of “executing legal person or unincorporated organization tasks”,“issues within the scope of authority” and “restrictions on the scope of authority” is too abstract and needs further explanation.About the scope of the duty agent.The duty agent must be a staff member of a legal or unincorporated organization,and the staff member should also have external authority in the organization.In accordance with the provisions of the relevant laws of the company law,partners,executive directors,managers,financial controllers,heads of branch offices,department heads,etc.may become duty agents,supervisors may also become duty agents in specific situations,specific positions.The general staff can be a duty agent.Shareholders and directors cannot be duty agents.The board of directors and the board of supervisors may collectively exercise the right to act as a proxy.The scope of the agency rights.The scope of the agency authority depends on the interpretation of Article 170 “restrictions on the scope of authority” of the General Principles of Civil Law.The actual powers of the staff members depend on laws,administrative regulations,general social concepts,trading habits,organizational charters,resolutions,and basic relationships.There is information asymmetry between the legal person or unincorporated organization and the counterpart of the transaction in the knowledge of authority of the staff member.Therefore,the “scope of authority” should be limited.“Restrictions on the scope of authority” shall refer to the content of the functions of specific positions determined in accordance with legal provisions,administrative regulations,general social concepts,and trading habits.The content of this authority is the scope of agency.According to the different terms of reference,the duty agency rights can be embodied as general duty agency rights,type duty agency rights,and specific duty agency rights.Restrictions on terms of reference include statutory and intended limits,internal and external restrictions.The essence of statutory restrictions is the determination of agency rights.Article 170,paragraph 2,of the General Principles of Civil Law “Restrictions on the scope of authority” refers to the internal intended limitation.Legal person or non-legal person organization restricts the power of agency of a particular post confirmed by laws,administrative regulations,trading habits or general social concepts through internal provisions such as articles of association,resolutions and basic relations of legal person.The theory of the separation of authoritative behavior from the basic relationship should be used to explain Article 170,paragraph 2,of the General Principles of Civil Law.According to this theory,the duty agent's behavior beyond the internal restrictions does not necessarily belong to the ultra vires act: when the relative is in good faith,the duty agent's behavior belongs to the authorized agency act;when the relative is malicious,the duty agent's behavior belongs to the narrow sense of the unauthorized agency act.Acts of ultra vires duty agency include acts of duty agency beyond duty agency and acts of duty agency beyond internal restrictions when the counterpart is malicious.Both of them belong to the act of unauthorized agency in a narrow sense,and their final effect depends on whether a legal person or an organization without legal personality is recognized or not.No matter whether the legal person or the non-legal person organization approves or not,the duty agent does not need to bear the responsibility to the relative person.
Keywords/Search Tags:duty agency, duty agent scope, duty agency rights, act of ultra vires duty agency
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