Study On The Constitutive Elements Of Apparent Agency And Its Judicial Application

Article 172 of the general provisions of the civil law of China stipulates the system of apparent agency,and the theoretical dispute caused by it mainly lies in whether the principal's imputability should be regarded as an independent constituent element in the subjective constitution of apparent agency.Thus,two opposing viewpoints of "single requirement" and "double requirement" were generated.The purpose of establishing apparent agency is to maintain transaction security,and its most important feature is that the counterpart has a legitimate reason to believe that the actor has the right to act as agent,and whether he is at fault is not an absolute factor.From the perspective of legal interpretation,it is more in line with the legal provisions to believe that the actor has the right of agency in good faith and without fault.However,if the principal's imputation is an independent component,because the imputation of the principal cannot be included in article 172 of the general provisions of the civil law,it needs to be improved according to the rule of legal loophole filling.There are few cases in which the principal's imputation is regarded as an independent requirement,and there are differences in the meaning and judgment of the imputation,which makes it difficult to apply it in practice.Therefore,the author thinks that it is not appropriate to regard accountability as an independent constituent element.In the ostensible agency,should adopt the "new single element",namely,the other party reasonable trust association with himself,will link as an objective factors determine reasonable trust,only the correlation of agency to achieve sufficient strength,appearance and the other party under the condition of no fault,trust can be regarded as reasonable.As for how to judgewhether the relative person has faults,the judge should judge whether the relative person has reached the "reasonable error" according to the "rational person standard" and the specific situation.This paper consists of four chapters.The first is the overview of the apparent agency system.This paper mainly introduces the concept,nature and value of the apparent agency system and analyzes its legislative purpose.At the same time,the general provisions of the civil law,the contract law and the relevant judicial interpretation of the law and the interpretation of the agency involved in the appearance of a simple summary,the development of China's agency system of the appearance of a comb,from the macro view of the agency on the surface of a understanding.The second chapter is the doctrine dispute of the subjective constitutive elements of apparent agency.Firstly,it introduces the connotation of the traditional "single requirement theory",and analyzes that its main disadvantage lies in protecting the legal rights and interests of the opposite party at the expense of the principal.In order to make up for this defect,the author refers to the apparent agency system in the French law and includes the "relevance" into the investigation of the counterpart's "good faith and no fault",so as to form a "new single requirement theory",so as to prevent the principal from suffering unreasonable uninterest.Secondly,it introduces the theory of double requirements,analyzes the traditional theory of double requirements,and points out that the principal's negligence cannot make the system of apparent agency reasonably applicable.In order to develop the apparent agency system in our country,we draw lessons from the apparent agency system in Germany and develop the theory of "new double elements" based on it.However,the theory of "new double elements" takes imputability as its constituent element,which makes the principle of imputation differ in theory and practice.Finally,through the elaboration of the differences in the principle of imputation of the legislative purpose,legal interpretation and the theoryof "double requirements",it is concluded that the theory of apparent agency in China should adopt the theory of "new single requirements".The third chapter is the analysis of the constitutive elements of apparent agency inour judicial practice.First of all,it summarizes the relevant cases of the supreme people's court and draws the conclusion that the theory of single requirement is the theoretical basis in practice.Then,through case analysis,it is found that the application of "single element theory" in practice will not lead to the loss of my own interests,and the court has a very high requirement for the counterpart to constitute "good faith and no fault".Although "relevance" is not explicitly mentioned,it is often taken into account in fact-finding.Secondly,the judgment concerning the imputability is summarized and analyzed in data,and the conclusion is drawn that the application space of "imputability" in practice is not big.Thus further supports the "single element theory" in our judicial practice in the dominant position.It also enhances the rationality of the existence of the "new single requirement theory" which is formed to further explain the "single requirement theory".The fourth chapter is the judicial application of the theory of "new single elements".First,the type and strength of the appearance of the agency are discussed.The proxy appearance is divided into authorization behavior,and the behaviors directly related to authorization behavior and indirectly related to authorization behavior.The apparent strength of the agency has a direct impact on the determination of "good faith and no fault".The second is the identification of "good faith" and the distinction of the burden of proof,pointing out that "good faith" refers to the subjectively passive good faith,which should be presumed to be "good faith",the proof of "good faith" should be proved by the principal to be "not good faith",and the burden of proof of "no fault" should be borne by the other party.Thirdly,the definition standard of "no fault" is discussed in detail,the concept of "reasonable error" is introduced,and the "rational person standard" is constructed.Finally,the author USES the above theory to analyze specific cases to demonstrate the rationality of the theory of "new single elements" in judicial practice.