A Study On The Intersection Of Criminal And Civil Cases Involving Apparent Agency

The most important feature of criminal-civil crossover cases is that the criminal and civil legal relationships are intertwined and the relationship between the two is not clear-cut.Should they not interfere with each other,or do they have an impact on each other and how? This question is the focus and difficulty of the study of the intersection of criminal and civil issues,and is also a major difficulty in the correct application of the law in judicial practice.In economic activities,there are cases where the perpetrator,by means of fictitious facts and concealment of the truth,uses his own appearance of rights to act as other’s agent in civil legal activities with the opposite party,thus allowing the opposite party to deliver the property to the perpetrator,and the perpetrator takes the property for himself.In these cases,there are a large proportion of cases in which the perpetrator has the appearance of rights and the counterparty is acting in good faith,thus constituting an apparent agent in civil law.The impact of apparent agency on the criminal characterisation of a case is not uniformly understood in judicial practice,leading to different judgments in the same case.Based on this,this paper takes the criminal-civil crossover cases involving the apparent agent as the object of study,combines practical jurisprudence to summarize the judicial application dilemma of this type of crime,analyzes the problems using criminal law theory,and accordingly proposes specific identification methods on this basis,with a view to providing some ideas for handling the criminal-civil crossover cases of the apparent agent.The paper is divided into four sections,in addition to the introduction.The first chapter focuses on the current state of judicial determination of criminal and civil crossover cases involving agency by estoppel.Through the analysis of 60 criminal judgments,the crimes most frequently involved are fraud and embezzlement.At the same time,there is a clear difference between the prosecution and the defence on the determination of guilt and innocence,and between this crime and the other crime.The reason behind this disagreement is the different understanding of whether and how the civil legal effect of apparent agency has an impact on the criminal characterisation of the case.In the next three chapters,we analyse this difference and propose corresponding solutions.The second chapter examines the relationship between criminal law and civil law from the perspective of the principle of the unity of the legal order.Only by clarifying the relationship between criminal and civil law first can the impact of the apparent agency system on the criminal characterisation of a case be further explored.The unity of the legal order is a prerequisite for the correct application of criminal law,but it does not require the exclusion of all contradictions and discordant elements within the legal system.Furthermore,this principle requires that the discordance between norms should be dissolved as far as possible through a fair and reasonable interpretation,and that we legal practitioners should exclude those contradictions which seriously undermine the purpose and value of the legal order and cannot be dissolved through a reasonable legal interpretation should be excluded.The controversy over how to reconcile such contradictions has given rise to the monism of lawlessness,the relativism of lawlessness and the pluralism of lawlessness.The strict monism of lawlessness makes the application of law too rigid and the moderate monism of lawlessness is contradictory in its theoretical logic.What’s more,the pluralism of lawlessness avoids and even opposes the unity of the legal order,which is not in line with our legislative practice.When the purpose of protection of criminal law norms is consistent with other legal norms,the judgment of criminal illegality needs to take other legal norms into consideration.Most of the cases involving the intersection of criminal and civil apparent agency are property crimes,and the legal interests protected by property crimes are highly related to the purpose of protection of civil law norms,so civil law norms need to be taken into consideration when judging criminal guilt.The third chapter provides an analysis of the most common ideas for convictions in judicial practice.The determination of the victim is crucial to the criminal characterisation which means different victims can lead to different crimes,and the determination of the victim of a property crime relies on the determination of the loss of property.Fraud is a self-inflicted crime,a crime against the property as a whole,and the determination of property loss in fraud cases should examine the increase or decrease of the property as a whole from an economic perspective.In the case of an apparent agent,the bona fide counterparty obtains a valid contract as a result of the establishment of the apparent agency,and thus receives the corresponding contractual consideration.In the event that the agent is incapable of performing the contract,the bona fide counterparty should be deemed to have a loss of property;conversely,the bona fide counterparty should be deemed not to have a loss of property.If the former situation is met,the fraud between the two is established;if the latter situation is met,the crime of misappropriation(in office)is established,at which time the perpetrator misappropriates the property of the agent,and the victim is the principal.The crime of misappropriation of office protects double legal interests."Using the convenience of office" includes not only the convenience formed by the unit’s management personnel in the exercise of their powers,but also the convenience formed by the unit’s labour staff in the process of labour service to manage and handle the unit’s property,but it does not include the use of the familiarity with the unit’s situation and misappropriation of the unit’s property.As for the actus reus of misappropriation of office,it includes embezzlement,theft,deception or other means.The fourth chapter focuses on clarifying methods of identifying cases involving the intersection of criminal and civil apparent agency,and analyses typical cases.The determination of such cases should be done in two steps.The first step should be to determine the civil part of the case.That is,whether the actor constitutes an apparent agent.The second step should be to determine the criminal part of the case.To be specific,we need to make sure which offence the act constitutes,according to the circumstances of the case.As to whether the imputability of the agent is one of the constituent elements of the apparent agency,a dual-importance approach should be adopted.The essence of the apparent agency system is the risk allocation system arising from the appearance of rights,and the risk principle should be adopted for the determination of imputability.When an agency is established,the counterparty enters into a valid contract with the agent.If the contractual right cannot be realised,it means that the counterparty has paid the consideration in exchange for the unrealised right and the counterparty has suffered a loss of property.Therefore the perpetrator is guilty of fraud against the counterparty.When the contractual right has the possibility of being realised,it should be considered that there is no loss of property for the counterparty,and the apparent agent has the obligation to transfer the property to the principal after receiving the counterparty’s property.But the agent has illegally appropriated the property for himself,and at that time the victim is the principal.So the agent is guilty of the offence of misappropriation.