| Provisions concerning the liability of unauthorized agent stipulated in Article 48 of the Contract Law and Article 66 of General Principles of Civil Law were replaced by paragraphs 3 and 4 of Article 171 of General Rules of the Civil Law.Compared with the previous rules,paragraphs 3 and 4 of Article 171 refines the form of liability of the unauthorized agent,especially defines the performance of debt as one of the forms of responsibility explicitly.Article 171 also stipulates that the counterparty who knows or should have known that the agent has no authority of agency should also be liable for his fault.The change of legislation has reached the recognition of scholars to a certain extent,but it has caused more questions and discussions from scholars.Therefore,this paper starts from the analysis of the nature of the liability of the unauthorized agent in China,discusses the constitutive requirements,forms,contents and the subject of responsibility of the unauthorized agent base on Article 171,and propose a reasonable explanation for the application of the rules.The first part reviews the doctrines of the nature of the liability of unauthorized agent,and comments on each doctrine.Article 171 of the General Principles of Civil Law stipulates that the liability of the unauthorized agent is no-fault liability,and that the performance of debts and damages are the forms of the liability.Therefore,the rules of the liability of unauthorized agent of China should be interpreted as a statutory guarantee liability.The second part reviews the theory of the constitutive requirements of the responsibility of unauthorized agents and divides the constitutive requirements of theresponsibility of unauthorized agents into requirements of the claim for damages and requirements of the claim for performance of debt on the basis of paragraphs 3 and 4of Article 171.The requirements of the claim for damages include the existence of unauthorized act,the unauthorized act not being ratified,the unauthorized agent shall have the corresponding capacity.The requirements of the claim for performance of debt include,in addition to the three requirements mentioned in the claim for damages,the counterparty shall be in good faith,the unauthorized agent knows the lack of agency or does not know because of gross negligence,act of agency should be legal act in which a transferable debt will occur,the agent has the ability of performance when the counterparty claims for performance of debt.If the requirements of the claim for damages are met,the counterparty may claim damages to the unauthorized agent in accordance with paragraph 4 of Article 171.If the counterparty wants to claim the responsibility for performing the debt,it is necessary to prove that the special requirements are met.The third part discusses the contents and forms of the responsibility of the unauthorized agent.On the basis of acknowledging performance of debt as a form of liability of the unauthorized agent,we believes that if the agent refuse to perform the debt,the counterparty may request the agent to bear the corresponding liability for breach of contract.For scope of damages,it should also be defined differently according to subjective state of agent.When the unauthorized agent knows the lack of agency or does not know because of gross negligence,the damages claimed by the counterparty shall be the performance interest.If the unauthorized agent does not know the lack of agency which not because of gross negligence,the counterparty can only claim damages for reliance interests.At the same time,regardless of whether the counterparty claims to perform the debt or damages,the benefits derived from the liability of the unauthorized agent shall not exceed the benefits that can be obtained when the agent acts are valid.Besides,in order to protect the interests of the counterparty,the counterparty should be given the right to choose.And the right to choose shall be defined as thedebt of choice to avoid the counterparty obtaining additional benefits from the act of unauthorized agent.At the same time,for the stability of the legal relationship and the balance of interests between the parties,the unauthorized agent shall be given the right of interpellation.If the right of choice is not exercised within a reasonable period determined by the unauthorized agent,the right of choice shall be transferred to the unauthorized agent.Based on the consideration of the integrity of the rules of liability,the fourth paragraph should be interpreted as not only applicable to the internal responsibility sharing of the unauthorized agent and the counterparty,but also to external responsibility sharing when the parties have no malicious collusion and the counterparty knows or should know that the unauthorized agent lacks the right of agency.Finally,in the case of the transfer of the entrustment,the subject of responsibility is differentiated according to whether the subagent represents his or her identity.If the identity of subagent is not disclosed to the counterparty,the subagent shall assume the responsibility for the lack of agency or sub-agency.If the identity of subagent is disclosed to the counterparty,but the sub-agency cannot be proved,the responsibility is assumed by the subagent.If the subagent can prove the sub-agency and does not know the lack of agency which not because of gross negligence,the responsibility is assumed by the agent.If the subagent can prove the sub-agency and knows the lack of agency or does not know because of gross negligence,the subagent should share the joint responsibility with the unauthorized agent. |
