Research On Unauthorized Agency Responsibility

Article 171 of the General Principles of Civil Law amends and adjusts the system of unauthorized agency,which perfects the system of unauthorized agency in China.Compared with before,it is undoubtedly progressive,but it also caused new discussions and new problems.Firstly,the expression of compensation for damages in3~rdd paragraph of this article is vague,which will lead to different judgments in judicial practice.Secondly,the article only distinguishes the subjective state of the the opposite party,and does not distinguish the subjective state of the unauthorized agent.If the unauthorized agent bears the same liability for damages regardless of his fault,the requirement for the unauthorized agent is too strict,which does not conform to the principle of fairness in civil law.Therefore,in this paper article,171 of the General Principles of Civil Law is the object of research,and discusses the system of the unauthorized agency responsibility in China from three aspects:the nature of the unauthorized agency responsibility,the key component of the unauthorized agency responsibility and the assumption of the unauthorized agency responsibility.It is expected that I can make my own explanation and demonstration on the emerging problems.The introduction part of this paper mainly expounds how the problems studied are put forward.The academic value and practical significance of studying this problem,literature review,main research methods and main innovations and shortcomings of the paper.Chapter 1 discusses the nature of unauthorized agency responsibility.There are five main theories in academic circles:tort liability theory,contract liability theory,contracting negligence theory,implied guarantee liability theory and statutory guarantee liability theory.Although each theory has its own reasons,the theory of statutory guarantees can be explained most clearly from the system,and is also the general theory of German academia at present.This paper also agrees that the nature of unauthorized agency liability is legal guarantee liability.Our country's provisions on unauthorized agency liability draw lessons from the relevant provisions of German civil law,German civil law circles on the nature of unauthorized agency liability is also worth learning.Chapter 2 discusses the key component of the unauthorized agency responsibility.There are three key components,four key components and seven key components in this field.This paper holds that the four key components of"the act of unauthorized agency","without the confirmation of the principal","the the opposite party has not exercised the right of revocation","the the opposite party is in good faith"will result in the responsibility of unauthorized agency.As to whether agency by estoppel does not one of the key components,this paper holds the objection.Since the civil law of our country stipulates the agency by estoppel and the agency without authority in a narrow sense respectively,it is obvious that it is not necessary to specify when discussing the key components of the liability of unauthorized agency.Chapter 3 discusses the responsibility of unauthorized agency.Discussing from three aspects:the mode,content,scope and exemption of unauthorized agency responsibility.Through the analysis of Article 171,3rd paragraph,of the General Principles of Civil Law,the choice mode is adopted in our country,and the choice mode is more conducive to protecting the bona fide counterpart,filling in the damages caused by the unauthorized agency and respecting the meaning of the counterpart.The way of undertaking is to fulfill the responsibility and compensate for damages.Regarding whether compensation for damages is the performance of interests or the reliance interests,or it is advocated by the counterpart himself.The academic circles have different opinions.Referring to German civil law,we can distinguish the subjective state of the unauthorized agent from that of the bona fide unauthorized agent,and the counterpart can only claim damages for the reliance interest.A malicious unauthorized agent may claim damages for the performance of his interests.Under the idea of distinguishing the subjective state of the unauthorized agent,this paper subdivides the situation of goodwill of the unauthorized agent.This paper demonstrates why it is necessary to claim performance interests when the unauthorized agent is malicious.Confirming that the unauthorized agency responsibility is no fault liability,the actor can not be exempted by proving that he has no fault,but when the counterpart is malicious or the agent lacks the capacity to act,the actor is exempted.