The Principal's Liability Attribution In Apparent Agency

Our country's apparent agency system aims at safeguarding transaction security and protecting the legitimate interests of bona fide third party.In the process of formulating the General Principles of Civil Law,some expert drafts and their third review drafts stipulate that the factors of the principal should be taken into account in the composition of apparent agency.The article 172 of the final General Principles of Civil Law is essentially a continuation of the content of Article 49 of the Contract Law.From the point of view of legal provisions,it is difficult to know what attitude the legislator holds towards the attribution of the agent as a constituent element of the apparent agency.In my opinion,it has certain value and feasibility to regard my accountability as one of the independent constituent elements of apparent agency.In addition to the introduction and conclusion,this paper is divided into five parts:The first part focuses on the present situation of the research on the apparent agency in China.The focus of the dispute is whether the liability of the principal should be included in the constituent elements of the apparent agency.In this regard,there are mainly two traditional doctrines:"single requirement theory" and "double requirement theory".The value orientation of the above two theories is different,each has its advantages and disadvantages.On the basis of the traditional theory of "double elements" which regards fault as the principle to measure the attributibility of the principal,some scholars put forward new viewpoints on the criteria of the attributibility of the principal:relevance theory,analogy application of the rule of expression of will,balance between the attributibility and the reasonableness of trust,and risk theory.In the second part,by analyzing the legislative provisions and theoretical view-points of France,Germany,Japan and Taiwan on personal accountability in apparent agency,it is concluded that French law does not determine the elements of principal's liability,but places principal's liability in the reasonable trust of the counterpart;Germany determines the elements of principal's liability of apparent agency,but within the elements of accountability.The mainstream view in Japan and Taiwan area of our country now holds that one of the constituent elements of apparent agency is principal's liability.The third part and the fourth part analyse the value and feasibility of the establish-ment of the elements of accountability.The basic requirement of the principle of fairness in civil law,the principle that the non-accountable person does not bear unfavorable benefits,and the analysis of the intrinsic value of the system of bona fide acquisition similar to the structure of apparent agency provide the legal basis for the establishment of the elements of principal's liability.The relevant judicial interpretation and judicial practice in China and the allocation of the burden of proof of the element of principal's liability illustrate the feasibility of establishing the element.The fifth part elaborates the judgment principle of principal's liability,that is,the principle of risk imputation,and discusses the three considerations of the principle:I or a bona fide relative has created or more easily controlled the risks arising from the appearance of the agency,who bears the risks of the appearance of the agency is more in line with the principle of fairness.At the same time,this paper makes a typological analysis of the various situations in which the principal may be liable from five aspects,including the authorized expression,notice or announcement issued by the principal to the counterpart,the authorized expression,notice or announcement issued by the principal to the agent,the extinction of the agency right,the principal knows that he has no right to act but refuses to prevent and the principal knows that he has no right to act.In order to better understand and apply the principle of risk liability.