Research On The Civil Liability Of Unauthorized Agent

Article 171(3)&(4)of the General Provisions of the Civil Code provides that the principal shall not have the right to represent the civil liability of the relative person in the event of failure to ratify it.To a large extent,this makes up for the gap in the law,the provisions of the law so that the judicial practice before the lack of uniform standards to solve many problems,to a certain extent,improve the efficiency of judges handling cases,this is worthy of recognition.However,its provisions are more general,there are still some problems in understanding and application can not be clarified.For example,how to understand the nature of the liability of the unauthorized agent,whether it is contractual liability or contractual fault liability,or a special liability;how to understand the performance liability of the unauthorized agent,what is the basis for its performance responsibility;how to understand the scope of the unauthorized agent's damages,whether it is compensation for the relative person's performance of the benefit of the loss of compensation,or the benefit of trust,and so on.In fact,the existence of the above problems has brought great interference to the judicial practice.In this context,this paper analyzes and discusses the issues related to the responsibility of unauthorized agents from the perspective of explanatory theory,and puts forward some new suggestions in order to play an important role in judicial practice.This article is divided into five parts to discuss the responsibility of the people without the right to represent.The first part is the introduction.The research background,significance,research status,research methods and innovations of the civil liability problem of unauthorised agents were expounded,and the literature review related to the relevant data,,and points out that article171(3)&(4)of the general principles of civil law cause considerable controversy between judicial application and scholars.The second part mainly introduces the current situation of the legislation and the main problems existing in the application of the law,and expounds in detail the contents of article171,(3)&(4),of the General Provisions of the Civil Code,and its application in judicialpractice.Through the analysis of typical judicial data and typical cases,it is concluded that there are four main problems in the judicial application of the above provisions: that is,there are differences in the nature of the non-right to represent the people's affairs responsibility,the determination rules of the non-right to represent the people's affairs responsibility are not uniform,the application of the non-right to perform the responsibility is confused,and the scope of compensation without the right to represent the people's affairs responsibility is controversial.The four questions are discussed in this part.The third part analyzes the nature of the responsibility of the people without the right to represent.There are different viewpoints in this field,including contract liability,tort liability,contracting fault,implied guarantee liability,legal liability,etc.Based on the concepts and connotations of each doctrine,this paper compares the advantages and disadvantages of each theory,and finally concludes that the legal liability theory is more in line with the current legal provisions.The comparative law draws lessons from the legal provisions of Germany,Japan,Italy and so on,which provides a reference for the content of liability and the scope of compensation of our country's unauthorized agents.In the fourth part,the author discusses the issue of determining the responsibility of the people without the right to represent them.This paper introduces the civil liability of the unauthorised agent to the bona fide counterpart and the civil liability of the unauthorised agent to the malicious counterpart respectively.On the basis of this understanding,with the help of the determination of the nature of the people's responsibility that has not been determined before,it is determined that the responsibility of the unauthorized agent is no fault liability,even if there is no fault,it is also responsible for the bona fide counterpart,only if the unauthorized agent is aware of the situation,can bear responsibility for the malicious counterpart.The fifth part of the article analyzes the responsibility of the people without the right to act.This chapter analyzes the performance liability of the unauthorized agent and the liability of compensation separately,while demonstrating the rationality of the performance liability,limits the application of the choice of performance liability,and then analyzes whether thescope of compensation of the unauthorized agent is performance interest or trust interest or both,and concludes that it is necessary to distinguish the subjective state of the unauthorized agent to determine the scope of compensation.Finally,the form and scope of liability in article 171,paragraph 4,of the General Civil Code are determined.