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A Research On The Principal's Imputability Element Of Apparent Agency

Posted on:2021-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:Z J ZhengFull Text:PDF
GTID:2506306095964369Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The dispute between the "single element theory" and the "double element theory" about the constitutive requirements of apparent agency has not disappeared with the promulgation of the contract law.Article 172 of the general provisions of the civil law follows the legislative model of article 49 of the contract law and has not been substantially changed.However,no matter in theory or practice,there are different opinions on whether the above specification contains the elements of the principal imputability.Throughout the legislative and judicial practice of various countries,most of them take their own factors into the consideration of apparent agency,and the mainstream theory also holds the same view.The principle of ascertainment of liability is also the focus of the dispute.The principle of fault,the principle of inducement and the principle of risk have their own reasons,but the principle of risk is superior.In addition to the introduction and conclusion,this paper is divided into four parts.The first part expounds the connotation and reasons of the two theories of "single element theory" and "double element theory",and evaluates them."single element theory" does not take the principal's fault as an element,and thinks that it can better achieve the legislative purpose,improve the transaction efficiency,facilitate judicial operation,etc.;The "double requirement theory" takes the imputability of the principal as an important requirement,and advocates that it more conforms to the principle of fairness,the principle of autonomy of will and the trend of world legislation.The "single requirement theory" overemphasizes interest of the counterparty and the transaction efficiency,ignores the principal's interest,and has many defects."double requirements theory" more consider the balance of the interests of both sides of the transaction,pay more attention to fairness,compared to the "double requirements theory" more reasonable.The second part is the comparative investigation and reference of the elements of the principal's imputability.In the countries of civil law system,Germany has established the rules of apparent agency through legislation and precedents.The establishment of the apparent agency in the German law requires that principal has fault.French law initially constructed the system of apparent agency based on the principle of fault,and then established a new theory of apparent agency through legal precedents.The new theory does not take the existence of fault as an important element,but still considers the factors of the principal.The non-repudiation agency system in the common law system requires the declaration of the principal to establish the non-repudiation agency and emphasizes the principal's factors.China's legislation should learn from the advanced experience of othercountries and establish the principal's imputability requirement in the apparent agency.The third part discusses the reasons and functions of establishing the elements of the principal's imputability.There are sufficient reasons to establish the essential elements of the principal's imputability.The principal's imputability is not only the basis for the independence of the system of apparent agency,but also the important reason for the appearance of agency power,which also provides a proper basis for the principal to bear the consequences of the apparent agency.At the same time,the establishment of the elements of the principal's imputability plays an important role in promoting the improvement of the apparent agency system,the unification of judicial judgment and the stable development of the market economy.The fourth part discusses the identification standard of the principal's imputability.Different scholars hold different views on the principle of the principal's imputability,including the principle of fault,the principle of inducement and the principle of risk.This paper proposes to construct a binary review structure based on the principle of risk,identify specific situations,and finally determine whether the principal has imputability.
Keywords/Search Tags:apparent agency, principal's imputability, constitutive requirements, risk principle, unauthorized agency
PDF Full Text Request
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