| As an important part of the agency system,the apparent agency has become more and more mature up to now,and it plays an important role in protecting the relative party’s trust interests and maintaining the smooth progress of market transactions.However,there are still disputes between theory and judicial practice on the issue of "personal accountability" in the apparent agency system.The focus of the dispute is whether "personal accountability can be regarded as an independent constituent element of apparent agency".Around this problem,the academic circle mainly has the following four theories: the single requirement theory,the new single requirement theory,the double requirement theory and the new double requirement theory;At the same time,there are also two different ways to judge the apparent agency in judicial precedents.One is that the apparent agency can be established only if there is the appearance of right and the counterpart has good faith and no fault.The other argues that in addition to satisfying the former two,it is necessary to judge the accountability of the person before the establishment of apparent agency can be determined.This paper analyzes the accountability requirements of the person in the apparent agency:First of all,the author thinks that personal accountability should be regarded as the constituent elements of apparent agency.The realization of the aim of the agency by estoppels system can through the trade security and autonomy the balance of interests and conflicts,and can’t direct interests at the expense of one party for the other side of the security,responsibility burden should be on the premise of corresponding imputation basis and comprehensive considerations I actively said as or negative tolerance is not as the appearance of rights and the formation and continuous substantive contact,therefore,introduction of ostensible agency I can blame sexual elements has its necessity and justification of the basis,from the narrow sense of unauthorized agency and agency by estoppel to distinguish the analysis and comparison with the good faith system perspective,I can blame sexual elements,In order to meet the value balance of social legal order,the coordination between legal system and law application should be guaranteed.At the same time,the principle of "the non-imputation principle does not bear the non-benefit principle" also believes that the establishment of apparent agency is an additional non-benefit for the person,and it should require the imputation basis of justifiable reasons.In addition,the principle of fairness calls for the introduction of the accountability of apparent agency to balance the value interests of the relative person’s trust protection and autonomy of his own will,so as to better highlight the legislative spirit of the civil code.Second,avail himself of the principle of "risk" the found himself to blame,it draw lessons from the good faith system responsibility burden of legal norms,also reflected in today’s information age under the background of flexible follow the fashion,the more agree with the "civil code" legislative spirit,The risk principle applies to fairness in the context of who creates unnecessary risks,who controls them more easily,and who gains from them,the principle of fair reasonable deal with the dialectical relationship between fairness and efficiency,the principle of proportion,achieve the goal of the damage to the minimum.Again,Reasonable restriction should be given from two aspects: the classification of causes and the distribution of burden of proof.in order to prevent the impact new elements of the agency by estoppels system designed to avoid power imbalance,from one extreme to another extreme,for I can blame elements should be reasonable restrictions: will dispute right appearance of ostensible agency shall be typed and the cause of formation of respectively from five aspects of the causes of judicial practice analysis.First,I will proxy credentials appearance under the control of others;second,I knew but did not deny unauthorized agency behavior;third,position relationship between actor and I,fourth,behavior person there are other relationship with himself,fifth,not recovered after termination of agency relationship document of title or inform the other party,to enhance its applicability and stability;As for the distribution of the burden of proof,the other party only needs to prove the appearance of the right,while the other party needs to prove that he is malicious and does not have the liability.Therefore,in the practical investigation,the existence of the right and the non-fault of the counterpart can be judged first.If one of them is not consistent,there is no need to further prove the imputation of the person,and the direct determination does not constitute the apparent agency.If the appearance of rights and good faith without fault are satisfied,then the risk principle is used to determine the liability basis of the person,and the final judgment is whether to constitute an apparent agency. |
