Research On The Components Of Apparent Agency

Agency refers to the legal system in which the agent authorizes the actor to engage in legal acts in his name within the scope of authorization,and the corresponding contractual obligations are undertaken by the agent.Agency is accompanied by the rapid development of the commodity economy.Before the agency system came into being,the commodity economy was underdeveloped,trading activities were relatively simple,and the scope was narrow.Therefore,trading activities only need the participation of the parties themselves,not by others.However,after entering the capitalist society,commodity exchanges become increasingly frequent,the commodity economy develops rapidly,and social life becomes more and more extensive and complex.Everyone’s age,mental status,health status,level of knowledge,time and so on may be limited,so that they can not do everything personally for every civil activity.The agency system came into being.The agency system makes the parties do not need to engage in civil activities in person,breaking through the limitations of time,region,energy,knowledge level,physical condition and other aspects,greatly promoting commodity exchange relations,promoting the development of commodity economy,making this system one of the most important systems in civil law.According to the law of our country,apparent agency means that when the actor has no power of agency,but there is enough appearance to make the bona fide third party believe that the actor has the right of agency,the actor and the third party conclude a legal relationship,and the consequences of the legal relationship are borne by the agent.Apparent agency system weighs the interests of the principal and the bona fide third party,so that the principal undertakes the legal consequences of the acts of the apparent agent and the third party,can protect the interests of bona fide third party,maintain the order of transactions,and can enhance the credibility of the agency system.However,on the other hand,the apparent agency system protects the transaction security and trust interests at the expense of private law autonomy.It seems unfair to the principal if the principal’s factors are not taken into account under any circumstances.For example,sometimes the principal has no connection with the appearance of agency.Such as when the perpetrator embezzled the official seal and engraved seals.This paper argues that the factors of the principal can be included in the constituent elements of the apparent agency to study the impact of the factors of the principal on the identification of apparent agency.This paper is divided into five parts: The first part is the introduction,mainly put forward the connotation,system value,the connotation and system value of apparent agency,the problems of apparent agency in our country,introduced the views of relevant scholars on the problem of personal accountability in apparent agency,and the research value of this paper.Research methods,innovations and deficiencies.The second part introduces the controversy over the constitutive requirements of the apparent agency,explaining whether the attribution of the agent should be included in the constitutive requirements of the apparent agency in our country;The third part is about the comparative law research on the attribution of the principal.By studying the provisions of Germany,France,Japan and Taiwan on the attribution of the principal,the conclusion is drawn that these countries are applicable to the attribution of the principal.The fourth part is the specific criteria of attributibility research,through our country’s current main criteria of attributibility theory,to analyze the specific attribution principle of the attributable agent and applicable standards;The fifth part is the study of the necessity of my accountability.Through the study of the third part and the fourth part,the necessity of my accountability as a constituent element of apparent agency is concluded;The sixth part is the study of the specific criteria of accountability.Through the theoretical study of the main criteria of accountability in our country,we can analyze the specific principles and applicable criteria of the principal’s accountability;The seventh part is the study of the burden of proof.It elaborates who should bear the burden of proof in the appearance of rights,the goodwill of the third party and the accountability of the third party.The last is the conclusion,I agree that the attribution of the agent should be taken into account in the determination of apparent agency.The principle of attribution of the agent should be distinguished: if the positive act of the agent causes the appearance of agency,and the relative person is bona fide without fault,the attribution theory can be adopted,that is,only the attribution theory can be used.That is to say,as long as the act of the principal is related to the appearance of agency,the principal is not required to be at fault.As for the appearance of the right is not caused by the agent’s positive behavior,I believe that the criterion of attribution of the agent can be used to risk theory,mainly to investigate the risk of appearance of the right in whose controllable field,specific cases also vary.