Imputability Of Principal In Agency By Estoppel

Our current laws and regulations did not clarify on the question if our agency by estoppel system shall require principal to be accountable,causing problems in our judicial practice that different sentences in same cases.Considering the above existing questions,this paper will focus on:whether the imputability of principal shall be a constitutive requirement of our agency by estoppel,and how to judge specifically the imputability,which contains use which kind of doctrine of liability fixation to judge the imputability,and how to define the risk range shall be borne by the principal.Chapters of this paper will be as follows,excluding the introduction and epilog.The first chapter will introduce the current major Chinese laws on agency by estoppel system,including Contract Law,Civil Law,Civil Code and related juridical interpretations.And with those introductions,this chapter will analyze our current agency by estoppel system and especially the vagueness of laws on whether imputability of principal shall be a constitutive requirement of agency by estoppel.Due to vagueness of laws,it exists for longtime intense argument on constitutive requirement of agency by estoppel in our academic law field and generate various opinions about it,among which this paper will mainly introduce three major opinions:"Single Requirement","Dual Requirements" and "New Single Requirement" and analyze the core dispute among those opinions is if the imputability of principal shall be a constitutive requirement of agency by estoppel.Further,we will also analyze the difference on judicial judgement of constitution of agency by estoppel,even different judgement for same case.By introducing the vagueness of laws,arguments in academic field,as well as the divergence on judicial practice,the question,i.e.whether the imputability of principal shall be required,existed in our current agency by estoppel system will be then introduced.Solving this problem will effectively improve our agency by estoppel system,and make the system play better role in the practice.This chapter will analyze the theoretical basis of establishing imputability of principal in agency by estoppel system from three perspectives,rechtsscheinhaftung,principal of fairness,and comparison analysis.Rechtsscheinhaftung requires person responsible for appearance equipped with imputability.Bona fide acquisition system also requires the owner equipped with imputability.Thus,same as bona fide acquisition,belonging to rechtsscheinhaftung,the agency by estoppel also require the principal equipped with imputability,i.e.imputability of principal shall be a constitutive requirement of agency by estoppel.Only considering the innocency of third party without considering any autonomy of will of the principal does not conform to the equity principal.To obey the equity principal,it requires to consider the imputability of principal in agency by estoppel system.Also in the agency by estoppel systems in Germany and France,the imputability of principal in agency by estoppel system is recognized to different degrees.Same as those countries.belonging to continental law system,our country can take theirs as reference,establishing imputability of principal in agency by estoppel system.This chapter will further analyze the basic principal and specific method to judge if the principal has imputability.This chapter will introduce three main opinions on how to decide whether principal has accountability or not,i.e.incentive principal,fault principal,and risk principal,and by analyzing the aforesaid,the third chapter will put forward the opinion to use risk principal to judge the imputability of principal,i.e.see if the surface of authorityship is caused by factor within risk scope controllable by principal.On basis of the aforesaid,this chapter will further raise two specific methods to judge,i.e.if the risk is produced by principal,and if principal has laissez-faire attitude towards attorney ship in false appearance.Meanwhile,this chapter will take the contract dispute case between Tencent and Laoganma as example,which aroused wise public attention in this year,to demonstrate the feasibility of these specific methods of judgement in practice.