| Legal disputes in the field of construction engineering are complex and the facts of the case are cumbersome,while the determination of apparent representation in the field of construction engineering has always been a difficult point in practice.In terms of legislation,Articles 171 and 172 of the Civil Code of the People’s Republic of China and the Guiding Opinions on Several Issues Concerning the Trial of Civil and Commercial Contract Dispute Cases under the Current Situation promulgated by the Supreme People’s Court have provided for apparent representation,but whether it is the distinction between functional agency and apparent agency,or the definition of the appearance of agency power,the content is too general.The Judicial Interpretation of the General Provisions of the Civil Code issued in 2022 only further elaborates on ‘the counterparty has reason to believe’,but it also fails to determine the legal nature of the person’s attribution.As a result,there is a lack of unified standards for the identification of apparent agents in the field of construction projects in practice,and it is difficult to solve the problems of identification and responsibility of agents.Therefore,starting from the professional perspective of the construction engineering field,this article collates the measurement standards of apparent representation in practice over the years,and tries to summarize the appropriate determination standards,hoping to provide reference for the legal and engineering circles.The main body of this paper is divided into three parts:The first part,the question raised.Three cases are selected in the search and three typical focus of controversy are summarized.The second part,legal analysis.The three controversial points mentioned above are analyzed.Firstly,the paper studies the boundary between apparent agency and duty agency in the field of construction engineering.The main problem is that the scope of duties is not clearly defined and the expression is too general,which makes it difficult to distinguish between apparent agency and duty agency.Secondly,starting with identity representation,seal representation,settlement and receipt representation,this paper explores how to strengthen the representation of agency power of apparent agent in construction projects.Finally,this paper expounds the current situation of the theory,legislation and judicature of the liability of the principal,and explores the possibility of introducing the liability of the principal into the criterion of apparent agency recognition based on many theories and theories.The third part,research conclusion and enlightenment.In the conclusion of the research,the author summarizes three conclusions,including the practical urgency to distinguish apparent agency and job agency,the appearance of the agency must be independent and necessary,and the liability of the person should be included in the constitutive elements of apparent agency;In the aspect of research enlightenment,the author first puts forward the suggestion of distinguishing apparent agency and job agency by the nature of agent behavior.Through the difference of agent identity,the author divides the project manager who has labor relationship with construction enterprises and the project manager who borrows qualification and subcontracts the actual construction personnel,and then analyzes the behavior nature of the two types of actors.Secondly,it puts forward the identification standard of clear representation of agency power,and distinguishes it from legislative experience and practical situation respectively.Finally,it puts forward the imputation principle of comprehensive measurement,and focuses on the two factors of the correlation between the agent representation of the doer and the construction enterprise,and the construction enterprise to control the risk within a certain range.It can not only effectively maintain the interests of the counterpart,but also control the risk of apparent agency system being abused. |
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