A Study On The Liability Determination Of Unauthorized Agent In Narrow Sense

The agency system not only expands the scope of private law autonomy,but also complements private law autonomy.After the promulgation and application of the Civil Code,the new content and the revision of the old provisions were changed,so the interpretation of the provisions of the Code began to become a new research upsurge.However,the content of the regulation of unauthorized agency in narrow sense has not changed,and there is no new judicial interpretation to explain it.Due to the different understanding and application of the judicial organs,the result of different judgments in the same case is reflected in the judicial practice.Academic research on the narrow sense of non-right agency responsibility mainly lies in the nature of the dispute.Because the nature of responsibility affects the composition and commitment of the narrow sense of unauthorized agency responsibility,this paper based on the actual situation of our country,analyzes the problems behind the application of the narrow sense of unauthorized agent responsibility in judicial practice.Taking the nature of responsibility as the starting point,referring to the views of various theories at home and abroad,it is clear that the nature of the responsibility of the unauthorized agent in the narrow sense is the special liability of the law,and on this basis,the specific responsibility of the unauthorized agent in the narrow sense is discussed.This paper is mainly divided into five parts to discuss the responsibility determination of unauthorized agents in narrow sense.The first part is the summary of unauthorized agency in narrow sense.First of all,use the method of comparative analysis to discuss the definition and connotation of unauthorized agency in narrow sense.By analyzing the similarities and differences between apparent agency and apparent agency,the definition and scope of application of narrow sense unauthorized agency are clarified.That is,the narrow sense of unauthorized agency is the actor to carry out the act of unauthorized agency,I have not ratified and the relative person has not exercised the right of revocation,the relative person has no sufficient reason to believe that the actor has the right of agency,and the actor is responsible for the relative person.Secondly,by combing the origin and development of unauthorized agency from foreign to domestic,this paper focuses on the change of the content and the result of the law of unauthorized agency in narrow sense in our country.Then we understand the development trend of our country’s continuous explanation and refinement of narrow sense unauthorized agency responsibility.Finally,from the macro to micro point of view to analyze the narrow sense of unauthorized agency reflected in the value orientation.The second part mainly discusses the present situation and existing problems of judicial practice in our country.First of all,by comparing the judgment results of many judicial cases,it is found that the judicial practice in narrow sense has the status quo that the apparent agency is too broad and the narrow sense has no right to bear the responsibility of the agent.Secondly,further analysis of the current situation found that the narrow sense of non-agent liability of judicial practice,including the nature of the liability is unclear,the scope of compensation is controversial and the standards of goodwill of the relative people are inconsistent.The third part mainly discusses the nature of non-right agency liability in narrow sense.First of all,this paper discusses the necessity of determining the nature of agency responsibility in narrow sense from two aspects: the constituent elements of agency responsibility and the influence of the content of responsibility undertaking.Secondly,this paper discusses the main theories of the nature of non-right agency liability in narrow sense,including the theory of contractual liability,tort liability,fault liability of contracting,implied liability of guarantee and special liability of law.Finally,this paper discusses the rationality of the theory of special liability in law from the aspects of solving the legal source,the legal framework system,the legislative value orientation and the specific application in judicial practice.The fourth part mainly discusses the constitution of the responsibility of the powerless agent in the narrow sense.This section discusses in turn whether it belongs to the constitution of non-right agent’s responsibility and how to place it.Drawing lessons from the stratum theory of criminal law,the constitution elements of the responsibility of unauthorized agency in narrow sense are divided into the elements of the establishment of responsibility and the limitation of responsibility.The establishment of liability includes: the actor’s act of unauthorized agency,the principal’s refusal to ratify and the counterpart’s failure to exercise the right of revocation.The limitation of responsibility includes the subjective good and evil of the actor and the subjective good and evil of the relative person.This paper discusses and analyzes the controversial problems in each element,and forms a complete logical structure of the constituent elements.The fifth part mainly discusses the responsibility determination of unauthorized agent in narrow sense.First of all,this paper discusses the way of assuming the responsibility of unauthorized agent in narrow sense,that is,to choose the performance of debt and liability for compensation.By comparing the advantages and disadvantages of single mode and choice mode,the choice mode accords with the value orientation of narrow sense unauthorized agency system.Secondly,discuss the content and scope of compensation.By comparing the advantages and disadvantages of the model of trust interest,the model of performing interest and the model of differential compensation in the application of various countries,it is considered that the model of differential compensation can better take into account the interests of all parties concerned from the perspective of protecting the free interests of the relative person.Finally,the narrow sense of the specific application of agency responsibility.The standard of distinguishing responsibility is divided into two parts: performance responsibility and compensation liability,and then the specific responsibility content is determined by combining the subjective good and evil of the actor and the relative person.There are two conclusions to bear the responsibility of performance :(1)if the relative person is subjective and good will,the actor bears the responsibility of performing the debt;(2)if the relative person is subjective and malicious,the actor does not bear the responsibility of performing the debt.There are four kinds of conclusions :(1)if the perpetrator is malicious and the relative person is in good faith,the actor bears the full liability for the performance of the benefit;(2)if the actor and the relative person are malicious,they bear the responsibility for the benefit according to the principle of fault offset;(3)if the actor and the relative person are in good faith,the actor bears the full liability for the benefit of trust;(4)if the actor is in good faith and the relative person is malicious,they bear the liability for the benefit of trust.