On The Liability Of The Unauthorized Agent To The Counterparty

Agency system is the expansion of the scope of private law autonomy,which is of great significance to facilitate convenient and safe transactions.Article 171 of the civil code clearly stipulates for the first time that the way to bear the responsibility of the agent without authority in a narrow sense is to perform or compensate for the loss,but it is not clear how to bear the responsibility and the scope of the responsibility.This kind of legal omission has led to confusion in the application of the responsibility of unauthorized agent in judicial practice for a long time,and even the situation of different judgments in the same case,which is embodied in the confusion in the determination of the validity of unauthorized agent,the applicable conditions of actual performance,the scope of compensation for damages,the standard of the relative person's good will,and the limitation of the responsibility of unauthorized agent The interpretation of the new law is also controversial.The legislative mode of agency system determines the effect and nature of the responsibility of unauthorized agent.In terms of legislative style,most countries in the continental law system adhere to the "distinction theory" and stipulate agency and authorize separately,while in the Anglo American Law of agency,entrustment and agency are not separated and adhere to the "integration theory".The legislative style of our country belongs to the "differentiation theory",and the grant of agency power has the characteristics of no cause and independence.Combined with the interpretation of paragraph 3(the act of unauthorized agency does not have effect on the principal without his approval),the act of agency between the unauthorized agent and the relative person is effective.However,when the unauthorized agent enters into a contract,it does not become the intention of the parties to the contract.According to the law,the opposite party has the right to ask the unauthorized agent to bear the compensation liability when it meets the conditions of unauthorized agency in the narrow sense.Whether the agent is negligent or not is not mentioned.Therefore,the liability of unauthorized agent is regarded as no fault liability.Based on the value consideration of protecting the bona fide counterpart,this paper distinguishes the subjective state of the counterpart to define the compensation liability of the unauthorized agent.Therefore,we must first clarify the connotation of the relative person's goodwill.According to practical cases and academic interpretation,this paper holds that "bona fide counterpart" in article 171,paragraph 3 of the civil code is limited to the counterpart who does not know the lack of agency due to general negligence,and draws the conclusion that it is not only because it should not be required to undertake the obligation of verification,but also by analogy with the obligation of the person in the apparent agency:accordingly,"knowing or should know" in paragraph 4 refers to "intentionally or due to gross negligence" There is a lack of facts in the right of agency.According to the above analysis,this paper discusses the content and limitation of the liability of unauthorized agent.When the relative party is in good faith,the agent has no right to bear the liability of compensation without fault,and gives the relative party the right to choose at will.The relative party has the right to request the relative party to undertake the obligation of actual performance or the obligation of compensation for damages limited to the interests that the relative party can obtain when the principal recognizes it based on the maintenance of its own interests and the difficulty of proof.When the proof is not easy,it can also be based on the standard of loss of reliance interests When the opposite party is malicious,only the responsibility of the unauthorized agent is limited,and the unauthorized person and the opposite party share the internal loss according to the cause of the loss caused by the fault.