On The Liability Of The Person In The Constitutional Elements Of The Agency

Whether we need to consider ourselves in the constitution of apparent agency in China can be traced back to before the law of contract.At that time,the controversy about the personal factor was still focused on the “fault” level,for which scholars argued endlessly.However,the “contract law”that was finally promulgated adopted the way of avoiding disputes.As a result,the academic debate on this issue became more fierce,and further evolved into the academic confrontation that the establishment of apparent agency does not need to consider the “single element theory” of one's fault and the “double elements theory”of one's fault should be considered.It was hoped that the drafting of the general provisions of the civil law would put an end to the academic controversy over whether the establishment of the apparent agency should take into account the personal factors.Unfortunately,the final general provisions of civil law followed the legislative model of contract law.The ongoing question of my accountability in the apparent agency remains blank.The main purpose of this paper is to demonstrate that the establishment of apparent agency should consider its own liability,and put forward specific principle of liability as a judgment standard,so as to construct its own liability in practice.This paper puts forward the arguments from the perspectives of transaction risk,judicial practice and academic disputes,and it is still necessary to study the liability of the author in the elements of apparent agency.Then through the carding of the current law,the author puts forward the problem that “the current law is vague about the provisions of my imputable requirements”.Through the analysis of the apparent agency system constructed by the current law,it is found that the provisions of the law are too general as to whether the establishment of the apparent agency should consider its own liability.After that,the controversy about this issue in the research field mainly involves the “single element theory”,“double element theory”,“new single element theory”and “new double element theory”.Through the analysis of the above theories,the author puts forward that the viewpoint of this paper should adopt the theory of “double elements”.Thus,I establish the status of imputability as a constituent element of apparent agency.Although more and more scholars advocate that the author's liability should be regarded as a constituent element of the apparent agency,there is still a big dispute about which principle should be adopted as the criterion of judgment.Therefore,the focus of the discussion lies in the establishment of the criterion of my imputablejudgment.By analyzing the existing judgment principles in the academic circle one by one and combining the specific performance of these principles in judicial practice,the conclusion is drawn that the “risk principle”should be adopted as the judgment standard.On the basis of the above judgment standard,the concretization of risk principle in judicial practice is expounded.The thesis mainly develops from two aspects.On the one hand,it discusses the feasibility of the risk principle in judicial practice by combining several cases.On the other hand,it expounds the embodiment of risk principle in judicial practice.It mainly involves three parts: the concretization of the imputable liability,the concretization of the relative relief and the concretization of the burden of proof in the procedural law.