| With the development of social economy,people’s life becomes more and more colorful,the matters involved in the civil legal act between husband and wife and the third party and the possible disputes also become more and more complicated.In order to simplify the necessary elements of agency behavior between husband and wife and maintain the stability of marriage and family and the security of market transactions,the marriage and Family part of civil Code establishes the family agency system in the legislative level for the first time.That is,husband and wife both sides in the scope of family daily life as mutual agent,in their own name when carrying out civil activities,the legal consequences produced by both sides jointly bear the system.However,the provision of Article 1060 of the Civil Code on family agency is too simple and abstract.Although it provides some guidance for judicial practice,it is still not detailed enough in content,which makes the system still need to be further explained and improved in the judicial application process.Therefore,through the collation and analysis of judicial cases involving family agency before and after the promulgation of the Civil Code,combined with relevant theoretical research,and a comparative investigation of foreign legislation of the system,this paper reconsiders the still controversial issues in the judicial application of family agency in China.First of all,the basic theory of the family agency system is sorted out.Through the definition of the concept of family agency and analysis of its characteristics to lay the theoretical basis of the paper.Think housework agent of ‘identity’ and ‘property’ dual attribute,reflect the housework agent system and market transaction of family life are inseparable,is a kind of special agent on the premise of marriage survive system,with the ‘agency by estoppel’,‘of the management of content is easy to confuse each other’ has carried on the analysis of the system.Secondly,the application of family agency system in judicial practice in China is analyzed.Through the summary of the family agency cases before and after the promulgation of the Civil Code,it is found that the application of the family agency system in dispute mainly focuses on folk lending,housing sales,sales contract and contract validity disputes.The reasons for the differences are as follows: First,although the real estate and large movable property have been excluded from the scope of family agency in China’s judicial practice,there is still a problem of unclear definition for the identification of the amount;Second,there is no unified judgment on whether the exercising subject of family agency is in the state of separation and whether the husband and wife still have the right to enjoy family agency on daily family life.Third,there is a risk of abuse of the power of family agency,which may infringe the interests of one or the third party of the couple;Fourth,the effectiveness and responsibility of the exercise of family affairs agency is inconsistent.Finally,through the summary of domestic and foreign scholars’ views and judicial practice experience and the investigation of the implementation of the family agency system abroad,the judicial application of the family agency system under the Civil Code of China is put forward to reconsider,and the understanding and application of the family agency system in China are standardized.The scope of family agency is firstly defined on the basis of Maslow’s hierarchy of needs theory,while some special items are excluded.Secondly,subjective and objective criteria should be considered,and the actual benefit and possible benefit should be distinguished to make a comprehensive judgment.The exercising subject of family agency should be clearly defined as legal husband and wife.During special periods such as separation,husband and wife can only enjoy the right of family agency for some matters that do not take joint life as the prerequisite.Restrictions on domestic agency Except for the prior agreement between the husband and wife clearly stipulated by law,one spouse may be given the right to limit the agency of the other spouse alone in a state of emergency;As for the legal consequences arising from the normal or abnormal exercise of the family agency power,the validity and responsibility under the system of apparent agency and unauthorized disposal are clearly defined,so as to find a balance between the interests of the principal’s spouse and the interests of the third party.At the same time,corresponding relief channels should be given to the principal and special protection should be given from the property order of debt repayment and the division of liability property. |
