Research On The Normative Path Of Unauthorized Job Agency

Although legal persons and unincorporated organizations are one of the civil subjects,they cannot act in person as abstract organizations.They must use the actions of legal representatives and other staff to realize their purpose of participating in the transaction.Therefore,determining the attribution of legal effects of behavior through the system of job agency is an important way for organizations to achieve their own goals.However,authorization and power limitation are often two sides.In business practice,the ambiguity of the scope of authorization is unavoidable,and the judgment of whether the agency acts beyond the authority becomes difficult.In the situation where the agent exceeds the authority,how to properly maintain the interests of the transaction counterparty and transaction security is the key issue that the agency law needs to respond to.In China’s current civil law system,there are dual normative paths for the effectiveness of agency actions beyond the authority of the civil law in Article 172 of the General Rules of Civil Law and Article 170,subparagraph 2,to clarify the logical relationship between the two paths and to demarcate the applicable boundaries between the two.It is necessary to try to seek clearer path selection criteria.This article is a study on the normative path of over-the-counter job agency.Except for the introduction and conclusion,the full text is divided into five parts.The first part draws the core issues that this article wants to discuss from typical cases.That is,in judicial practice,the court can choose to apply Article 172 of the General Provisions of Civil Law or Article 170,Section 2 of the General Provisions of Civil Law to regulate the agency behavior of unauthorized posts,but In the case of similar case structures,the difference in path choices may have a substantial impact on the judgment results.The second part mainly analyzes the constitutional requirements of the system and the criteria for judging the requirements of Article 172 of the General Principles of Civil Law when judging the effectiveness of agency actions for unauthorized duties.In terms of the agency rules,the focus of academic research in recent years has mainly been on the existence and judgment criteria of the attributable elements of the agents.On the basis of sorting and summarizing the current mainstream theory,this paper analyzes and concludes that the judgment standard of the attributable element should be based on the principle of fault,and the principle of risk blame should be supplemented.The application of the latter is limited to when both parties have no fault,and the division of risk areas should be based on the difficulty of the parties in controlling the risk.The third part mainly analyzes the constitutional requirements of the system and the judgment criteria of each requirement when applying the second subparagraph of Article 170 of the General Principles of Civil Law to judge the effectiveness of agency behavior.This article first clarifies that the purpose of the regulation in Article 170,Subparagraph 2 of the General Principles of Civil Law is the rule of agency for unauthorized duties,and its legal basis is the appearance responsibility of rights.Elements of the system.Among them,regarding the attributable element of the agent,because the legal person or unincorporated organization has only general faults but no faults for the appearance of the appearance,the criterion of the attributable element should adopt the principle of risk attribution,so that the legal person Or unincorporated organizations undertake the consequences of unauthorized actions.Regarding the requirements of the reasonableness of trust,because it is too difficult for the counterpart to examine the scope of job authorization,compared with the apparent agency system,the judgment standard of the reasonableness of trust should be appropriately reduced to allow the general negligence to set up an unauthorized job agent.The fourth part mainly analyzes the difference between the above two normative paths when judging the effectiveness of the agency behavior of unauthorized positions.Regarding the attributable elements,Article 172 of the General Principles of Civil Law shall adopt the judgment standard based on the principle of fault and supplemented by the principle of liability of risks,while the second subparagraph of Article 170 of the General Principles of Civil Law shall be based on the principle of risk attribution The standard is more appropriate.Relying on the elements of reasonableness,Article 172 of the General Principles of Civil Law requires the relative to be in good faith and without negligence,while Article 170,Section 2 of the General Regulations of the Civil Law abandons the aforementioned requirement of no-fault,based on the fact that the relative is not aware of the gross negligence standard.At the level of distribution of burden of proof,under the agency path,the counterparty should bear the burden of proof with regard to the representation of agency rights,his attributability,and his own good faith without fault.In Article 170,subparagraph 2,of the General Rules of Civil Law,the counterparty Just need to prove the appearance of agency rights and their own goodwill.The fifth part mainly discusses the normative path of the agency of unauthorized authority from two aspects of interpretation theory and legislation theory.In terms of interpretation,the second subparagraph of Article 170 of the General Principles of Civil Law shall take precedence over the application of Article 172 of the General Regulations of Civil Law,and when the authority required for agency acts exceeds the scope of the authority that can be inferred from the job,the court shall exclude the application of the Civil Law The second subparagraph of Article 170 of the General Provisions,citing Article 172 of the General Provisions of the Civil Law to determine the effectiveness of agency acts.In terms of legislation,compared with the traditional express agency system,Article 170,Section 2 of the General Principles of Civil Law has increased the responsibility of legal persons and unincorporated organizations in the field of duty agency.This legislative arrangement reflects the general principles of the Civil Law The respect for the difference in the value orientation of civil and commercial law should be affirmed.