Research On The Narrow-sense Unauthorized Agent Liability In China

The situation of unauthorized agency exists in a large number in the process of market transactions,which leads to many disputes of unauthorized agency.Agency system is an important part of civil legislation,which embodies the fundamental spirit of autonomy of will in civil law.The system of unauthorized agent liability in the narrow sense is an indispensable part of the agency system,which aims at maintaining the order and security of transactions and protecting the reasonable trust of bona fide counterparts.Our country’s system of narrow-sense unauthorized agency has been continuously improved and developed from General Principles of the Civil Law,Contract Law to the latest General Rules of the Civil Law.However,some provisions in the latest General Rules of the Civil Law on this system are still ambiguous in meaning and illogical.This article attempts to discuss the most basic and important issues in the narrow-sense unauthorized agent liability,including the nature of responsibility,the composition of responsibility,the definition standard of the goodwill connotation of the counterpart and the form and scope of the responsibility of unauthorized agent,in order to provide some feasible suggestions for the future development of judicial practice.If we want to discuss the related issues of the narrow-sense unauthorized agent liability,we need to accurately locate the nature of the responsibility at first.Theoreticdebate and Research on this issue gradually formed five main theories through historical development,including contract theory,tort theory,the theory of cupla in contrahendo,the theory of implied warranty liability and the theory of legal guarantee liability.By reviewing the historical background and combing the internal logic of various theories,the author thinks that each theory has its shortcomings,but comparatively speaking,I think that the theory of legal guarantee liability is more in line with the purpose of legal norms and legislative intention of the narrow-sense unauthorized agent liability.Moreover,in order to further clarify the connotation of the narrow-sense unauthorized agent liability,this paper argues that the connotation of the theory of legal guarantee liability should be expanded.The author falls in with Mr.Wang ’s view that the connotation of the theory of legal guarantee liability includes two aspects: On the one hand,the principle of liability without fault is adopted in the narrow-sense unauthorized agent liability.On the other hand,the basis for the liability of unauthorized agent in the narrow sense is the guarantee liability of agent prescribed by law.The establishment of liability is the premise for the counterpart to request the unauthorized agent to bear legal liability.There are always arguments about the composition of liability of unauthorized agent.Among them,there are more scholars who advocate the establishment of the liability of the agent to meet three or four elements.However,each theory has some different ideas inside.Starting from the fundamental intention of the system of unauthorized agent liability,and considering the efficiency and cost of litigation in judicial practice,the author thinks that the liability of unauthorized agent consists of three elements.Firstly,the agent engages in acts of unauthorized agency.Secondly,the principal doesn’t give his recognition on the acts of agent.Thirdly,the counterpart does not exercise the right of revocation.At the same time,as to the element that the relative person should be in good faith,this paper holds that it should be regarded as the restrictive element of liability rather than the establishment element.Because taking the goodwill of the relative person as the limiting factor of liability is not only conducive to lightening the burden of proof of the relative person,but also conducive to improving the efficiency of judicial proceedings.The latest legislation clearly stipulates that only bona fide counterpart enjoy the right of claim against unauthorized agents.The judgment of "bona fides" should belong to the scope of legal judgment in essence.The definition of its connotationdepends on the legislator’s measurement of the legal interests between the parties in the legal relationship of the narrow-sense unauthorized agency.This paper studies the definition of "bona fides" of the relative person from three perspectives: the principle of protection of trust interests,the balance of legal interests and the systematic interpretation.The writer holds that under the current legislative background of our country,the standard of the definition of the subjective goodwill of the relative person should be "ignorant and ignorant without negligence" of the fact that the agent is not authorized effectively.How the unauthorized agent assumes responsibility is the content that this article needs to discuss in detail and in depth.According to the law,the bona fide counterpart may request the unauthorized agent to perform his debt or compensate for his loss.However,the exercise of the right of claim and the scope of the agent’s liability need to be further explained and refined.By combing the views and judicial precedents,and drawing lessons from comparative law,the author holds that on the basis of affirming that the bona fide counterpart has the right to choose the form of the agent’s liability,it should distinguish the form and scope of the agent’s liability according to the subjective state of the unauthorized agent.The relative person’s right of autonomous choice should also be limited by certain conditions.This paper argues that a bona fide counterpart’s request for an unauthorized agent to perform his duties requires an additional restriction,that is,the agent knows exactly that he is not authorized legally.As far as the liability form of agent’s compensation for damages is concerned,if the agent knows the fact that he lacks effective agency power,the bona fide counterpart may claim compensation for the loss of performance interests;if the unauthorized agent does not know the fact that he has no agency power,the bona fide counterpart may request him to compensate for the loss of trust interest,but the amount of compensation shall be limited to the performance interest.The General Rules of the Civil Law has only been published for a short time.In order to improve the accuracy of its application and promote the further development and improvement of judicial practice,more theoretical studies and judicial precedents are needed to provide room for its progress in the future.