Research On The Recognition Of The Imputability Of The Principal In Agency By Estoppel

On October 1,2017,the concerned General Principles of Civil Law came into effect.However,its provisions on agency by estoppel have been amended several times,and the final expression has continued the provisions of Article 49 of the Contract Law.It has not responded to the disputes in the current judicial practice and academia.The original intention is to safeguard transaction security and protect the interests of bona fide counterparts.However,the stipulation is more principled and general.The contradiction at the legislative level leads to the vacillation of judges' attitude in judicial practice.The phenomenon of "different judgments in the same cases" occurs from time to time,which makes it difficult to achieve the purpose of the system and to guarantee the stability of the law.There are two opinions in the academic circles: the theory of single element and the theory of double elements.In order to seek a trial idea which is consistent in theory and meets the requirements of practice,this paper,on the basis of quantitative analysis of cases,summarizes the tendencies and demonstration paths of judges' judgments,summarizes the practical problems arising in the trial,carries out targeted theoretical analysis and reflection,seeks the jurisprudential basis through extraterritorial law and legal value,and combines with article 171(3)to prove that the theory of double elements and the criterion of risk imputation principle are more practical to adopt practice.Besides the preface and conclusion,there are three chapters.Chapter ? describes the present situation of the application of agency by estoppel in China.The first section starts with the relevant legal provisions,and through thelegal analysis of Article 49 of the Contract Law,the Supreme People's Court's Guiding Opinions and article 172 of the General Principles of Civil Law,it shows that the relevant legislation in China is generality.The second section combs the identification methods and standards in judicial precedents.By sorting out 124 cases,this paper analyses and summarizes three kinds of trial paths of courts of different regions and levels: single element,double elements and overall demonstration path,summarizes the criteria of judges' identification,and explores the problems in trial,which provides practical basis for the optimization of the constituent elements of agency by estoppel.Chapter ? summarizes the controversial points about whether the attributibility of the agent should be regarded as an independent constituent element of the agency by estoppel.The first section introduces the disputes in academic circles in detail,which are mainly divided into single-element theory and double-element theory.On the basis of carefully combing the theory,this paper puts forward its own views,pointing out that the essence of the dispute about the accountability of the principal is its legal positioning.The second section is based on the empirical summary of the discretion of judges,sorting out the dispute over the criteria of determination in judicial decisions.Chapter ? puts forward the optimum construction path of our country's apparent agency system.The first section examines the relevant laws of the two legal systems in the context of extraterritorial law,focusing on the relevant legal systems of Germany,France and Japan.It emphasizes that the attribution requirements of the principal are different in the model of civil-commercial distinction,including the value orientation of apparent agency under the background of civil-commercial separation and the higher duty of care in the commercial field.Then,it puts forward the reference significance for the system development at the present stage according to the reality of our country.The second section demonstrates that in the context of intra-territorial law,the identification of agency by estoppel should adopt "the limitation double-element theory".This view not only conforms to the original intention of the system of agency by estoppel,but also inherits from the system jurisprudence of Article 171(3).In judging whether the agency by estoppel should be established,the principle of risk liability should be added as a criterion,focusing on factors such as who causes the risk,who is easiest to control the risk and who controlsthe risk more fairly and reasonably,focusing on ensuring transaction safety,safeguarding the reasonable trust interests of the counterpart,and also paying attention to making the principal free from criticism.