The Imputability Of The Principal In Apparent Agency

With the promulgation of the general principles of civil law,the codification of China is in the process of gradual advancement.However,there are still many legal issues in this process that need to be clarified.The imputability of the principal in apparent agency studied in this paper is such a problem.For the purpose of this study,through the analysis and research of the imputability of the principal in the apparent agency,this paper discusses whether the imputability of the principal should be taken as one of the constituent elements in the judicial practice determination of the apparent agency system and what kind of imputability principle should be adopted to determine the imputability of the principal.In terms of research content,the first chapter discusses whether it is necessary to consider the imputability of the principal in apparent agency in the establishment of apparent agency.Firstly,this paper discusses the dispute about whether the imputability of the principal should be included in the constitutive elements.It is found that the current legislation is relatively vague,and it is not clear whether it is necessary for the apparent agency to be established on the premise of the imputability of principal.Secondly,article 49 of the contract law and article 172 of the general principles of the civil law are interpreted comprehensively by means of the text,system,history and other legal interpretation methods,establishing that the factor of the principal shall be considered in the apparent agency.The second chapter mainly discusses how to judge the imputability of the principal.Although more scholars agreeto take personal imputation into consideration,it is still controversial what kind of imputation principle should be used in the process.In this paper,various imputability principles are analyzed in practice and theory,and considering that the structure of apparent agency is similar to bona fide acquisition,the author thinks that risk imputation should be used as the basis for judging the imputability of the principal.The third chapter focuses on the judicial precedent and carries out a type analysis on the imputability of the principal.The author analyzes a large number of judicial cases,finds similarities between the cases and summarizes the rules.In the specific application of the risk principle,we should base on who has the ability to prevent and control the risk,and analyze the risk prevention of the principal on its own belongings and the person with a specific relationship to determine whether the apparent agent is established.In terms of research methods,this paper starts from the theory of legal interpretation,comprehensively applies various interpretation methods such as literal interpretation and systematic interpretation,through comparative law research and judicial case study,analyzes the imputability of the principal from both theoretical and practical aspects.According to the analysis,in the value measurement of the apparent agency system,the interests of the principal should be properly protected according to the imputability of the principal rather than the security of the transaction and the interests of the counterpart.Therefore,the imputability of the principal should be regarded as one of the constitutive elements of apparent agency.And the principle of risk imputation should be taken as the criterion to judge the imputability of the principal.The principle of risk is superior to the principle of fault,the principle of inducement and the principle of comprehensive measurement.The principle of fault blindly protects the principal's interests;The principle of inducement is essentially an outcome responsibility;The dynamic comparison of the principle of comprehensive measurement leads to the greater discretion of judges,and the factors taken into account are too broad and not conducive to practical operation.Therefore,the application of the principle of risk in judicial practice will be conducive to theidentification of apparent agency,which is not out of the scope of autonomy of will,but more clear and more consistent with the principle of fairness.In the allocation of risks,it should be based on the two kinds of risks that are most easily controlled and most common by the principal.The first one is the management of the things of the principal,especially the management of the document of rights.The second one is the prevention and control of the risks of people with specific relationships with the principal.