Research On The Corporation's Apparent Manager

At present, the title of manager and similar titles are everywhere. But there is no law provided the situation in which the manager or someone like him engage in business without the manager's rights or beyond the manager's rights. In practice, this kind of situation is not uncommon,due to no clear rules of the law, the judge always base on the agency by estoppel or the official behavior. But civil agency has its own limitations used in the commercial fields, the corporations have thier own risks compared to the individual, and the managers have specific appearance of rights compared to the general agent; The theory of official behavior is also not the reasonable basis of judgment, it just emphasis the results, but does not distinguish the legal relation and the scope is also not clear. Compared to the lack of legislation in China, the corpotation's apparent manager are regulated in Japanese and South Korea's commercial code, and Japanese Corporation. Therefore, based on the need of practice and the reference of foreign theories, the corporation's apparent manager is researched in this paper, aiming at having some significance to the legislation and judicial practice.In this paper,empirical analysis method is used to analysis the problems in practice, starting with the case in the judicial practice. Using the comparative analysis and document analysis method to analysis the definition and constitutive requirements of the corporation's apparent manger in foreign legislation and judicial practice, as to emphasis the necessity and importance of the provision of the apparent manager in the Corporation Law. In addition to the introduction and conclusion, this paper is divided into the following sections:In the first section, the definitions of the corporation's apparent manager in legislation, theory and judicial practice are discussed.The corporation's apparent manager is not a behavior, a subject or a privilege, but rather a system.The corporation's apparent manager is a system in which the head corporation and branch bear the consequences,when the corporation's manager and someone with the similar title without corresponding rights engage in the business with the third party in good faith.In the second section,the legal basis of the corporation's apparent manager are analysised. The corporation's apparent manager does not occur overnight,the rechtsscheintheorie in civil law family and the doctrine of estoppel in common law family provide the legal basis for it.In the third section,the constitutive requirements and common types of the corporation's apparent manager are analysised. The constitutive requirements of the corporation's apparent manager is different from the constitutive requirements of the ostensible agency. As to the requirements of subjects, the apparent manager should be someone with the title of manager or similar titles. As to the objective requirements, the apparent manager must engage in the business. As to the subjective requirements, the third party should be in good faith and without gross negligence, taking into account the efficiency of commercial transactions and the company's operating risk. In the second fraction, the common types of the corporation's apparent manager are classified into three types based on the common types of the agency by estoppel and the characteristics of the corporation's apparent managerIn the fourth section,the legal effects of the corporation's apparent manager are analysised.It distinguishes between the external and internal aspects. The external legal effects are that the corporation should bear the legal consequenses to the third party in good faith, as to the apparent manager's behavior associated with operating.The internal legal effects are that the apparent manager with subjective fault should bear the corresponding legal responsibility to the company based on the different basic relationship.In the fifth section,sort out the current legal provisions of our country about the corporation's apparent manager and point out the problems.And emphasis the necessity of the provision about the corporation's apparent manager in the Corporation Law, taking into operating and drawing lessons from the foreign legislation.