Research On The Principal’s Imputability In Commercial Apparent Agency

China has adopted a unified civil and commercial legislation,and the system of apparent representation is placed in a monolithic mode in Article 172 of the Civil Code,which leaves commercial apparent representation with a lack of institutional structure.As far as the value orientation of the article itself is concerned,it does not hesitate to detract from the "static" interests of the counterparty in order to focus on the "dynamic" safety of market transactions,which also reflects its obvious "commercialisation" tendency.The "commercialisation" tendency is also evident.Civil agency and commercial agency have different values and objective rules,which are reflected in the identity of the subject,the extent of the need for security in transactions,the scope of agency authority and the appearance of agency.The actual state of the law cannot deny the dichotomy between civil and commercial agency,and it is necessary to differentiate the application of civil and commercial agency in judicial practice.Personal imputability is a state in which the subject has the basis and grounds for liability,and is a necessary precondition for liability.Article 172 of the Civil Code only stipulates what constitutes an agency in person by stating that "the opposite party has reason to believe",and it is unclear whether this should include the element of personal imputability.Due to the abstractness and vagueness of the legislative expression,the controversial discussion on the elements of apparent agency has gradually formed four theories: the single element theory,the double important element theory,the new single element theory and the new double important element theory.The single element theory tends to cause the proliferation of apparent agency;the double important element theory achieves a better balance between trust protection and private law autonomy;the new single element theory is too subjective and lenient;and the new double important element theory is essentially a discussion of the principle of attribution.Within the dual-importance theory,there are four types of attribution principles.The principle of fault is prone to overkill;the principle of causation has vague criteria;the principle of risk is consistent;and the principle of comprehensive measurement has contradictory problems.The fact that the criteria for determining the imputability of the various principles of imputation are far apart determines that it is not appropriate to generalise about the imputability of civil and commercial representations.Through an empirical analysis of 114 cases,it was found that the number of commercial representation cases and the rate of application of the element of personal imputability have both shown an upward trend in recent years.It was found that the application of personal imputability in commercial representation is characterised by unclear legal positioning,inconsistent principles of imputation and a lack of typological guidance,leading to a proliferation of commercial representation,confusion in judicial decisions and the failure of the vision of "one judgment for all cases across the country".This is due to the vague and abstract formulation of the legislation on the monolithic model of representation in China,the differences in judges’ perceptions and adjudication concepts,and the absence of a technical approach to typing.It was also found that the appearance of commercial agency rights is mainly the official seal,blank contract book,office relationship,agent relationship;my imputability imputation situation mainly has "four bags and a reliance" imputation,management imputation and authorization imputation,the above provides guidance for the construction of the type group.In view of the above problems in theory and judicial practice,try to put forward three major suggestions for improvement.The first is to clarify the legal position of the constituent elements of my imputability.The spirit of the return of private law autonomy should be implemented in order to achieve a proper balance between trust protection and private law autonomy.Secondly,the rules on the application of the risk principle in personal imputability should be optimised.The dynamic system will be the centre of consideration,with emphasis on the opening and control of risks and the introduction of trading habits as an auxiliary element of judgement.Thirdly,the construction of a typology for the application of personal imputability.In a typological manner,individual cases are appropriately specified to the level of the rules in order to achieve accurate application.The existence of agency appearance credentials under the examination of the real seal without the right to use and fake seal fraudulent use;official seal and blank contract book,authorization letter three combination types.The existence of a specific identity relationship is mainly examined in the case of employment relationship,agent relationship,"four bags and a dependency" relationship.I am negligent in giving notice of the existence of an appearance of risk prevention costs.In the case of tolerated agency,the degree of appearance of rights and historical transactions are examined to distinguish them from implied authorisation.In the case of a revocation of a wrongful authorisation,the commercial representation is applied by analogy and the relevance of the agent is examined.In the future,there is a need to continue to sort out typical cases in judicial practice,in order to enrich and improve the group of types of commercial representation in which personal imputability is applicable.