Study On The Imputability Of Principal Of Apparent Agency

Article 172 of the General Provisions of Civil Law continues to use the previous expression for the system of agency by estoppel.And did not make perfect measures for the problems that have emerged in practice.In particular,there is no clear reply on whether the principle of risk imputation belongs to the constitutive requirements of apparent agency.In fact,two mainstream views on this issue have been formed in the academic field:"single element theory" and "double element theory".The former holds that apparent agency can be established as long as the reasonable trust of the opposite party is satisfied.The latter holds that the appearance of agency is directly related to the principal and should be assessed by "imputability".In fact,the root cause of the dispute between the two theories is the value conflict between the two legal principles of "private autonomy" and "reasonable trust" on the legislative level.This is also the direct reason why the application standards of the apparent agency rule are different in judicial decisions.In order to solve the contradiction in the application of the law and make the law serve the practice better,this paper will construct a more accurate and perfect system of apparent agency judgment by sorting out the value connotation of the dispute theory,comparing and weighing the system of acquire in good faith logically connected with it,distinguishing the standards of apparent agency imputation under the system of civil and commercial unification,and summarizing the thinking of the trial of imputability principle in cases.It is concluded that its constitutive requirements should meet the requirements of "the appearance of the right to exist","the relative person reaches the reasonable trust standard","the principal has risk imputability" and"the relative person has no fault in good faith".The first chapter introduces the research background and significance of this paper By analyzing the current legislative situation of the system of apparent agency in our country,the theoretical disputes and practical problems of "single element theory" and"double element theory" are sorted out to pave the way for the following researchThe second chapter is an overview of the theory of apparent agency system and an explanation of the imputation theory of the principal.Through the literal interpretation and systematic interpretation of the theories,the relationship between them is clarified.Then,through exploring its value connotation,it is concluded that the imputation of the principal's risk should be included in the constitutive requirements of apparent agency,thus providing a theoretical basis for the practical analysis of the second part.The third chapter is to analyze the necessity of the legitimacy of the principal's risk imputation.First of all,it compares "private autonomy" with "reasonable trust" in terms of legislative value,which shows that the legal status of the principal and the counterpart is equal.Secondly,through the comparison of acquire in good faith system consistent with logic,it is concluded that the principle of imputability can be incorporated into the practical approach of apparent agency.Finally,by comparing with the dualistic system of civil and commercial law,it is concluded that the apparent agency system should distinguish the imputation principles of the agent in the civil and commercial field,and explain the specific situations that can be applied to fault imputation and risk imputation by way of example.The fourth chapter is an analysis and summary of applicable imputation practices.Through sorting out the court's thinking on the trial of "single element theory" and"double element theory",the trial tendency of the judgment content and the acceptance degree of the judgment result by the parties,the necessity and legitimacy of the inclusion of imputable elements into apparent agency are obtained,and the theoretical analysis is perfected by empirical results.The conclusion is a summary and reflection of the whole research.Through discussing the writing thought of this article,the hidden problems of imputation principle are reflected in order to make better supplementary amendments to the details.