See The Research On The Principal Attributable Elements In Agency

The Article 49 of the China Contract Law and the Article 172 of the general provisions of the Civil Law provide for the system of apparent agency in China.In the above legal provisions,the constitution of apparent agency is provided only on the basis of "reasonable belief".It is the vagueness of legal provisions that has caused a great dispute on the constitutive elements of apparent agency in the academic field.Such disputes mainly focus on whether the accountability of principal should be regarded as a constitutive element of an apparent agency.The settlement of such disputes will provide definite guidance for the determination of the constitutive elements of apparent agency in judicial practice.There are three core issues discussed in this article: 1.Whether the accountability of principal should be regarded as a constitutive element of an apparent agency;2.If so,which principle should be applied to determine whether apparent agency can be attributed to the principal;3.On the basis of determining the principle,the specific application standards of this principle are further discussed.The three issues mentioned above are in a progressive relationship.This article holds that the accountability of principal should be regarded as a constitutive element of an apparent agency.And meanwhile,the comprehensive identification principle of risk imputation and relevance judgment should be applied.Discussing the specific application standards of the above comprehensive determination principle is actually discussing the specific application standards of both the principle of risk imputation and the identity relevance judgment.The principle of risk imputation is applicable to cases where the degree of third party’s trust is not very strong,and the key to application is to divide the risk fields.The identity relevance judgment is applicable to cases where the degree of third party’s trust is very strong,and the key to application is to clarify whether there is a special identity relationship between the agent and the principal.In addition to the preface and conclusion,this article can be divided into four chapters.Chapter 1 mainly introduces the basic theories of accountability of principal and puts forward the main issues discussed in this article.First of all,it introduces the specific connotation and main theories of accountability of principal.Furthermore,it puts forward the main issues discussed here: 1.Whether the accountability of principal should be regarded as a constitutive element of an apparent agency;2.If so,which principle should be applied to determine whether apparent agency can be attributed to the principal;3.On the basis of determining the principle,the specific application standards of this principle are further discussed.Chapter 2 mainly discusses the rationality of including the accountability of principal into the constitutive elements of an apparent agency.First of all,accountability is the basis of the principal’s liability.Furthermore,it analyzes the rationality of the accountability of principle from the perspective of rechtsscheinhaftung.In the end,based on the value of the apparent agency,it demonstrates the role and value of the accountability of the principal.It is helpful to reduce the conflicts of interest between principal and counterpart and prevents the scope of application of apparent agency system from expanding unduly.Chapter 3 mainly discusses which principle of accountability of principal shall be applied.First of all,it analyzes the existing principles about accountability of principal.It comes to a conclusion that the fault imputation principle does damage to the interests of the counterpart,the criterion of inducement determination in the inducement principle imputation is vague,and the risk imputation principle has a comparative advantage but also its own limitations.Then,it puts forward and proves the rationality of a new comprehensive identification principle: comprehensive identification principle of risk imputation and identity relevance judgment.Firstly,it can avoid the excessive damage to the relative person’s interests and the ambiguity of the specific recognition standards.Secondly,it can absorb the advantage of maintaining social equity of the risk imputation principle.At last but not least,the identity relevance judgment can make up for the incomplete application of the risk imputation principle,and provide definite guidance for the situation of forging seal agency in judicial practice.Chapter 4 focuses on the specific application standards of the comprehensive principle proved above.It holds that the principle of risk imputation is applicable to cases where the degree of third party’s trust is not very strong,and the key to application is to divide the risk fields.And then discuss its application in different situations by taking "whether or not to issue authorization notification" as the classification standard.As for the identity relevance judgment,it is applicable to cases where the third party has a strong degree of trust,and the key to application is to clarify whether there is a special identity relationship between the agent and the principal.This article also discusses its application in different situations by taking "the relationship between the principal and unauthorized agent" as the classification standard.