A Study On The Right Of Intervention And Option In Indirect Agency In Article 403 Of The Contract Law

Article 403 of "Contract Law" refers to the "Convention on International Goods Sales Agents" when it is concluded and incorporates the provisions of the Anglo-American legal system in which the identity of the agent is not publicly disclosed.The right to choose,but the content of this provision is relatively concise,which makes the interpretation of the specific requirements for the exercise of the right of intervention and the right of choice and legal effects.In the Supreme People’s Court Gazette case,the court judged that the consequence of the exercise of the right to intervene was to replace the trustee’s legal status with the client.The theory of doctrine has many different views on this referee’s opinion.Article 926 of the Civil Code(Contract)follows the provisions of Article 403 of the Contract Law,with no substantial changes.Therefore,the exercise and legal effects of the right to intervene and the right of choice need to be analyzed and elucidated by academic theory to realize the clarity of legal interpretation and application.The legislative purpose has an important reference role in determining the legal effect.Article 403 The purpose of the introduction of the right of intervention and option system is to provide legal support for foreign trade agents,to give the client and the third party the right to directly claim against the other party,and to make up for the unfairness that may be caused by the trustee’s debt.To simplify legal relations.Although the current foreign trade agency has been opened,in practice,the agent’s behavior in the name of the agent’s interests has become the norm,so the legislative purpose of the existence of the right of intervention and choice has been transformed to provide relief to the principal and the third party.In explaining the rationality of the right to intervene and the right of choice,the academic world has produced two theories of direct agency effect theory and debt transfer theory.By comparing these two theories,this paper believes that the debt transfer theory is more in line with the legal structure of indirect agency in my country.That is,the right obtained by the principal exercising the intervention right comes from the assignment of the trustee’s creditor’s rights,and the performance of the principal’s commitment to the third party due to the choice of the third party is a debt commitment.The current law is not clear about the conditions for the exercise of the right to intervene and options,such as the specific meaning of the third party’s “don’t know” agency relationship,the scope of “non-performance”,and the disclosure of the trustee and the exercise of the right to intervene and options Relations and other issues need to be further clarified.In this regard,this article explains through legal norms that it is clear that the third party does not know the circumstances that the third party should not know and does not know,and can include the circumstances of the third party’s failure to perform when the trustee is bankrupt;the purpose of the trustee’s disclosure In order to let the principal or third party know the existence of the other party,the exercise of the right to intervene does not require the trustee to disclose as the prerequisite,and the trustee does not disclose,as long as the principal knows the specific identity of the third party,he can go directly to the third party.People claim creditor’s rights.The right of choice is different.When the trustee does not disclose,even if the third party knows the existence of the agency relationship,it cannot claim the creditor’s rights from the principal.In addition,the right to intervene and the right to choose must be notified to the third party or the entrusted personnel to produce the corresponding legal effect.Although this article advocates the use of the debt transfer theory to construct the legal effect of the right of intervention and option,the right of intervention and option are different from the general transfer of creditor’s right and debt undertaking.The specific legal effects of rights and options.The third party can claim the client’s defense against the trustee after the client intervenes,and can notify the client of the creditor’s claims against the trustee.As for the arbitration clause contained in the contract concluded between the trustee and the third party,in principle,it is valid for the client,unless the client expresses his objection when intervening.Regarding the legal effect of exercising the right of choice,the current law stipulates that once a third party chooses,it cannot be changed.By examining the experience of comparative law and the practice of judicial practice in my country,this article believes that the regulation is too harsh on third parties and should be appropriately relaxed.In order to protect the interests of the principal and not to reduce its status due to passive transfers,Article 403 specifically allows the principal to claim its defense against the trustee from a third party.However,through practical inspection,the defense may only be fulfilled by the client and the trustee may not be able to fulfill the objective of contracting.The court’s approach is to violate the principle of fairness and prohibit the client from claiming the defense,In fact,improperly limits the rights of the client.The court may explain that the third party may choose to pay off on behalf of the trustee to eliminate the client’s right of defense to obtain the client’s performance and to achieve the contract’s purpose.Given that the effective arbitration clause is premised on the voluntary arbitration of the two parties,and the transfer of debts,the principal has not expressed the opportunity to agree to accept the arbitration clause.Therefore,only after obtaining the consent of the client,the client is bound by the validity of the arbitration clause.