On The Legal Application Of The Constitutive Elements Of Apparent Agency

"Civil code" the 172 th regulation,the agency by estoppels system to the protection of the trust value of the system in the civil law system,for the purpose of through to the other party reasonable reliable protection to the protection of transaction security and to maintain the stability of the trading,but autonomy as one of the three major value of modern law is always the core value of civil law,therefore,when the two value autonomy and trust protection conflict,scholars on the basis of the method of value selection different ideas among different positions.In order to solve the conflict between the above two values,two main viewpoints have been formed in Chinese theoretical circles.One is the "single element theory" which supports the value of trust protection as the core of the system,and the other is the "double element theory" which supports the autonomy of will as the core of the system.The theory and view of the theoretical circle will inevitably affect the judgment of judicial practice.Therefore,in judicial practice,only the subjective good faith without fault of the counterpart is considered,and the subjective fault is also considered as an element.In addition,no matter in what kind of view of theoretical support theory,all think that the other party in good faith without fault is must have the constitutive requirements,however,how to ascertain this requirement is put in practice and theory of the problem,in the theoretical circle some scholars advocated "rational man" standard,also have advocated "reasonable error" standard,also have support "verification obligations and objective elements of" the combination of standard;Although the core of the argument is whether the relative person fulfills the duty of care in the field of practice,the courts at all levels have not formed a unified identification standard,which objective factors may have a greater impact on the judgment of the rationality of trust in the determination.To controversy in the theory and practice to make a beneficial explore,in this article,through the written judgment network retrieval compiled with a total of 215 cases of representative agency by estoppel,on the basis of these 215 cases and combined with theory,respectively discusses This paper discusses the criteria and the factors that should be considered in order to be helpful to the trial practice.This paper consists of six parts including introduction and conclusion.In the introduction part,it discusses whether the strength of representation should be taken as the basis of consideration in the determination of the appearance of rights in judicial practice,how to define the "reasonableness" of reasonable trust,what are the main objective factors to be considered,and whether the subjective fault of the person is an independent constituent of the establishment of apparent agency.The first chapter,in order to raise the question,analyzes and summarizes the judgment path existing in judicial practice by citing a typical judgment case of the Supreme Court,and summarizes the argumentation thinking that only considers the appearance of agency power and the relative person’s good faith and no fault as "the single element theory path".The argumentation thinking of considering one’s own subjective fault is summed up as "the dual requirement theory path";The idea of finding out whether there is fault directly by enumerating multiple objective facts to judge the rationality of trust is called "integrated argumentation path".The second chapter,by clearly distinguishing the appearance of agency and the appearance of agency,discusses the meaning of the appearance of agency and sums up the consideration factors in the identification.In chapter three,by comparing the meanings of reasonable trust in the three systems of "acquisition in good faith","unauthorized agency in narrow sense" and "apparent agency" in the theory of trust protection,it is concluded that the reasonable trust in "apparent agency" should be in good faith without light fault.Secondly,the standard of "combination of verification obligation and objective elements" should be adopted to judge the reasonable trust,and the objective factors that have influence on the reasonable degree of trust are listed.The fourth chapter,firstly discusses the different theories existing in the theoretical circle,and then,by comparing the foreign provisions on the apparent agency system and the controversies existing in the theoretical circle,suggests that the accountability of the person should be regarded as an independent constituent element and the "causality rule" should be adopted to determine the accountability of the person as.Epilogue part,concluded,in order to achieve the benefit to oneself and the other party interests equal protection and effectively guide the court judge standard,should be respect,on the basis of the existing legislation through the judicial interpretation issued by or guidance in the form of case will I can blame sexual requirements specified for shall be deemed as requirements,at the same time should also reasonably reliable make uniform standards.