The Research On The Unauthorized Agent's Liability To The Third Party

With the developing of market economy,agency is an indispensable system to replenish or extend the autonomy of will.Especially in the current high prosperity of commodity economy,increasingly frequent trade activities,and complicated social relations,the development of society urgently needs the effectiveness of agency system.Based on the Article 48 of the Contract Law,Article 171 of the General Provisions of Civil Law further refine the scope of liability for unauthorized agents,making it clear that “only a good faith third party can claim on an unauthorized agent for the performance of duty or compensation for damages”.But is the improved unauthorized liability clause sufficient to satisfy the need of development? I am afraid not.Therefore,in order to research the relevant issues in the application of liability of unauthorized agency better,this paper will analyze in four parts:The first part of this paper is the questions about the liability of unauthorized agency.After the promulgation of the "General Provisions of Civil Law",this paper summarizes the problem of the "different judgments in the same case" in China's current judgments and different interpretations in paragraph 3.There are theseproblems.1.The nature of unauthorized agent liability cannot come to the same conclusion,making the scope of damages unclear.2.The criteria for the determination of the third party's good faith are too loose.3.Whether the subjective aspects of the unauthorized agent affects the scope of damages;4.Whether the malicious counterpart cannot claim relief because of assumption of risk.Therefore,the following article mainly focuses on these problems.The second part of this paper is determination about the nature of the unauthorized agency liability.There are five kinds of viewpoints in the academic circle,namely,contract liability theory,culpa in contrahendo theory,liability for tort theory,implied guarantee liability theory and statutory special liability theory.This article recognizes the unauthorized agent's liability should be the statutory special liability with statutory guarantee,which is based on the principle of liability without fault.First of all,starting from the validity of the act of unauthorized agency,this article denies the view of relative invalidity and relative choice.The act of unauthorized agency is not only invalid for the agent,but also does not have effect on the agent.Then,based on the view of absolute invalidity,it is natural to rule out the possibility of applying contractual liability.Secondly,from the perspective of trust protection principle and law and economics analysis,it is clear that the responsibility of the unauthorized agent should be the responsibility of no fault.This negates the theory of liability for contracting negligence and the liability for tort,which is based on negligence.Finally,starting from the origin of the extraterritorial law,the connotation of statutory guarantees is determined.The third part is about the undertaking mode of the unauthorized agent's liability.First,this paper agrees that the scope of compensation for damages should be performance interest.However,in order to make up for the lack of the right of rescission of the agent,the agent who does not know the lack of agency rights should be given a defense against the liability.That is to say,the distinction theory of German civil law is recognized,and the fact that the agent knows or does not know the lack ofagency rights is the demarcation standard for the scope of damages.Secondly,the malicious counterpart has no right to claim the unauthorized agency liability to the agent.But it does not mean that the negligent agent is completely exempt from the civil liability.Paragraph 4 is a contributory negligence principle in the act of agency.What's more,this article argues the rationality of applying the liability for performance.However,there are still conditions for the application of responsibility of performance: in the event of possible performance,except for the limitation in Article 110 of the Contract Law,the unauthorized agent cannot benefit from the performance of the act;in the event of impossibility of performance,the application of liquidated damages or deposit terms shall be limited to the scope of benefits that can be obtained when the agent is authorized.The fourth part is about the analysis of the exclusion of unauthorized agency liability.First,based on the consistency of the basis of trust with bona fide acquisition,the coordination of the apparent agency and the efficiency value of the agency,this paper concludes that the theory of gross negligence should be applied instead of the theory of general negligence.Secondly,due to the special protection of juveniles,those who has limited capacity to perform agency activities that are compatible with their abilities assume the responsibility of not being authorized.However,when it is intentional of fraud,it should not be included in the scope of protection.In addition,when a counterpart who is not aware of the lack of agency rights exercises the right of revocation,there is no need to obtain the protection of the unauthorized agency responsibility.Finally,when the authorization act is revoked,the application of the unauthorized liability shall also be excluded.