Study On The Liability Of Unauthorized Agency In Narrow Sense

Agency system is one of the important systems in civil law,in which the system of unauthorized agency is an important branch of the agency system.In the broad sense of the unauthorized agency,the apparent agency,because of its particularity,is concerned by many scholars and judicial practitioners.In recent years,due to the gradual increase in housing transactions,the narrow sense of the unauthorized agencies soared.However,before the promulgation of the General Rules of Civil Law of the People's Republic of China,the General Principles of Civil Law of the People's Republic of China and the Contract Law of the People's Republic of China stipulate unauthorized agency generally,only to provide that in the unauthorized agency,the unauthorized agent should bear civil liability.After the promulgation of Article 171 th of the General Rules of Civil Law of the People's Republic of China5,many scholars paid attention to the 3rd and 4th paragraphs of the Article.Firstly,this Article is in contrast to Article 66 th of the General Principles of Civil Law of the People's Republic of China6 and Article 48 th of the Contract Law of the People's Republic of China7.There is a clear progress,it specifies the way and scope of principal's liability,so that the practice of the court can make the decision according to it.The author is concerned about the recent cases of unauthorized agency,and found that even after the promulgation of Article 171 th of the General Rules of Civil Law of the People's Republic of China,the courts' judgments on the liability of the unauthorized agent in similar circumstances remain different,and the court judgments are divided on the following two issues: 1.Is the contract that the unauthorized agent sign with counterpart valid? 2.The damage liability owed by the unauthorized agent to fulfill is for the benefit or trust? The author thinks that Article 171 th of the General Rules of Civil Law of the People's Republic of China clearly stipulates that the act of the unauthorized agent is not recognized and does not take effect with the principal,so the contract is invalid from the beginning.And there is no agreement between the unauthorized agent and the counterpart,so there is no contract,that is,the contract signed between the unauthorized agent and the counterpart is invalid.But in this paper,we mainly focus on the second problem.The study of the second problem focuses on the following four areas: On the question of the nature of the liability of the unauthorized agency: In 3rd and 4th of Article 171 th the General Rules of Civil Law,whether there is a difference in the liability of the unauthorized agent,and how to determine the nature of the liability of the unauthorized agent is the controversial point in the academic circles.By analyzing the reason of liability,the author thinks that the agent bears the legal guarantee liability to bona fide other people,and the agent bears contracted unpremeditated liability to where the other party knows or should have known that the actor has no power of agency.On the establishment of the liability of unauthorized agency: the author analyzes the constitutive elements and the exemption elements of unauthorized agency of liability by analyzing the establishment of the unauthorized agency.The constituent elements are the act of unauthorized agency,the failure of the bona fide other people to withdraw the legal act,the act of unauthorized agency is not recognized,and the exemption element is that agent is bona fide and other people is mala fide.Practical performance of the unauthorized agent: Through case analysis,legitimacy analysis and the actual implementation of 3rd of Article 171 th of the General Rules of Civil Law,to interpret and supply the loopholes of 3rd of Article171 th.Combing the first half of 3rd of Article 171 th of the General Rules of Civil Law,the author believes that this clause gives the counterpart the choice to request the unauthorized agent to bear the actual performance of the liability or the damage liability,which can enhance the relief to the counterpart,but the performance of the liability only applies to the situation where there is a mala fide agent and bona fide counterpart.On the damage liability of the unauthorized agency: the scope of the damage liability of the unauthorized agent is also demonstrated by case analysis,evaluation of the doctrine advocating different scope of damage and legal interpretation of the 3rd and 4th of Article 171 th.The author believes that the burden of damage liability should be distinguished according to the subjective mentality of the unauthorized agent,the bona fide agent need to burden damages for trust,while the mala fide agent need to burden damages for benefit.