Research On The Judicatory Application Of Apparent Agency In The Area Of Construction Works

The legal relationship in the area of construction works is complicated and the facts of the case are cumbersome.It is difficult to solve the problem of identification and responsibility of the agent by relying solely on the provisions of the General Principles of the Civil Law and the Contract Law on the representation of the apparent agency system.In judicial practice,the judicatory application of the case still has a lot of confusion and controversy,and the phenomenon of different judgments in the same case is too numerous to enumerate.Starting from the particularity of the area of construction works,this paper summarizes the rules for the identification of apparent agency in the judicial practice,and explores the criteria for the identification of apparent agency in the area of construction works,with a view to providing reference for judicial practice.This article is divided into four parts:The first part,raise the question.First of all,because the current law does not clarify the scope of job agency,the definition of job agency and apparent agency is vague.Secondly,different courts do not harmonize the scope and standards of the representation elements of apparent agency.Some courts use certain elements as judging apparent agency,some courts hold the opposite opinion.Third,the practice community does not classify the specific considerations for judging the reasonable trust of the counterpart,and the standard is full of confusion judging whether the counterpart constitutes a reasonable trust when analyzing specific case.The second part,study the boundaries between apparent agency and job agency in the area of construction works.The ambiguity of the “job scope” in the job agency makes it difficult to define the job agency and the apparent agency.This part analyzes the project manager’s authority to divide the project manager into the project manager with the labor relationship with the construction company and the actual construction worker borrowing qualification and subcontracting.Judging whether the behavior of the doer in this case is apparent agency or job agency,first,consider whether the project manager who has a labor relationship with the construction company determines whether to form job agency according to the scope of authorization,and then consider whether it constitutes apparent agency.The project manager of the actual construction worker of borrowing qualification and subcontracting cannot establish job agency,and only considers the establishment of the apparent agency.The other staff members of the construction company judge whether they form a job agent according to their job scope when identifying apparent agency and the job agency,otherwise,they may form apparent agency.The third part,study the judicatory identification of the representation of apparent agency in the area of construction works.The seal is an important factor in characterizing the appearance of the agency,particularly the true seal has a positive effect on the representation of the agency.The unregistered and private seal usually does not affect the establishment of the apparent agency.The seal of theft is generally difficult to form apparent agency.The use of a scope-specific seal often only works within its limits,but can also be combined with other representational factors when the scope is vague.When the behavior of the doer is within the scope of the authorization document,can establish job agency,if it exceeds the authority of the agency,consider whether to establish apparent agency.Identity documents can be combined with the authorization of the construction company,the holding of the seal and other factors to comprehensively judge the formation of the apparent agency.Declarative appearance has a positive effect to the identification of the apparent agency and can visually indicate the identity of the project manager.The fourth part,study the judgment of the reasonable trust of the counterpart in the area of construction works.Firstly,according to whether the counterpart knows the fact that the doer borrows the qualifications and subcontracts,the relative party of the contract is judged as the doer or the construction enterprise.Secondly,according to the nature of the legal behavior of the doer,the project manager is divided into the signing contract with the name of the construction enterprise and signing the contract in the name of their own,and the legal acts of different natures correspond to the different levels of attention of the counterpart.Then put representation of the apparent agency has relative relationship with the construction enterprise and the construction enterprise control the risk within a certain range as one of the elements of reasonable trust.Then analyze the strength of the representation of the apparent agency in the certain case according to the criteria of the operator,and then determine the extent to which the counterpart should have the ability to investigate and verify,and judge whether the counterpart constitutes a reasonable trust on the basis of reasonable duty of care.Finally,combined with some auxiliary factors to make a comprehensive judgment on the reasonable trust of the counterpart.