On The Constitutive Elements Of Apparent Agency

Apparent agency has been abused in judicial practice in China,the main reason is that the legal provisions on apparent agency are not perfect.Ostensible agency in our country law mainly include the general civil law of the People's Republic of China(hereinafter referred to as "the general civil law")and the contract law of the People's Republic of China(hereinafter referred to as "the contract law"),"the general civil law" the 172 th continuation of "contract law" for ostensible agency regulations,"the general civil law" the 172 th is essentially complete law of agency by estoppel.In terms of constituent elements,the imputability is derived from "the counterpart has reason to believe".In terms of legal effect,article 172 also stipulates the attribution of the effect of effective agency.However,only from the relative party has the reason of the constituent elements,then let the principal assume the legal effect of the right to act as agent,whether this practice has the suspicion of excessive protection of the relative party?The legal effect of apparent agency is that the principal assumes the performance responsibility of the authorized agency,but its establishment requirements only determine whether the principal assumes the responsibility according to the counterpart's unilateral elements,which is obviously unreasonable.The constitutive elements of apparent agency are controversial in judicial practice.First,does the establishment of apparent agency require the principal to be liable?How to determine the accountability of the principal?Second,how to judge the reason of the counterpart?Through the viewpoint of the opposite party's subjective good faith and no fault or whether the other party has fulfilled the obligation of examination and verification,or the combination of good faith and no fault and the obligation of examination and verification?China's relevant laws do not have operational provisions.For the above problems,each court has its own standards.This paper combines the theoretical views of scholars and the problems in judicial practice,and puts forward the author's views on the constitutive elements of apparent agency.The first chapter expounds the status quo and existing problems of apparent agency in legislation,and summarizes the problems in the process of apparent agency identification in practice by sorting out and analyzing cases.The second chapter discusses the existing theory of the principal's imputation,and expounds the author's support for the "new single requirement theory",that is,whether the principal has imputation as a factor to consider whether the counterpart has reasonable trust;Secondly,the author makes a theoretical analysis of the criterion of imputability,and briefly describes the theoretical basis of the author's support for the theory of risk.The third chapter summarizes and analysis the reasonable trust related theories,this paper the author thinks that the judgment of a reasonable trust need to the other party is in good faith and without negligence,under the premise that has the right to representation,subjective not due to negligence and the other party within the scope of ability and knowledge fulfill the duty to verify review,attention should be given to the time node of the goodwill,at the time,the completion of legal behavior agent has no right to the other party must have been good point of view.