On The Abstract Principle Of Agency Law

The abstract principle of agency law originated from German law,which is the theoretical structure of the relationship between authorization and basic legal act.Specifically,what kind of influence the internal relationship exerts on the agency,is an important direction to review the abstract principle.At present,the discussion mainly focuses on reviewing the unlimited scope of agency power in German law and the application of abuse of agency and apparent agency system.However,the latest legislation in Japan and France has a structure different from German law.The author intends to study the legislation and theory of comparative law,and propose ways suitable for the application of China's current law.The content of this article is divided into five parts.The first part introduces the theories related to the abstract principle in German law.German law is based on the abstract principle in the scope of agency,but it breaks through when the counterpart is not worthy of protection.The second part discusses the shortcomings of the abstract principle from the perspective of autonomy of private law.The abstract principle cuts off the connection between agency and internal relations,and gives the agents agency without any restrictions.There is an irreconcilable conflict with the realization of autonomy of private law.The third part presents the points of this article.In agency law,the abstract principle exhibits a kind of abstract in degree,rather than being completely separated from internal relations.We should distinguish between violation of the instructions of the principal and violation of the interests of the principal,surrender of agency and abuse of agency.The scope of agency is determined with the instructions of the principal,and beyond the limit constitutes unauthorized agency.If the agent's act harms the interests of the principal,it is an authorized act.Only when the counterparty is not worth trust-protection,it constitutes an abuse of agency so that the act of agency is not valid.Constitutes an abuse of agency,the agent should be intentional,meaning a breach of an obligation of loyalty.If the agent violates the duty of care,even if the counterparty knows it will not affect the validity.The fourth part discusses the application in Chinese law.The application of the abuse of agency in our country's law should be based on the principle of good faith and the legal effect of the absence of agency.When the agent violates the obligation of loyalty and the counterparty knows or should know that,the agent can claim the legal effect of unauthorized agency.The fifth part studies whether there is the possibility of sharing losses in the case of the agent's fault.This article considers that after being found to have no right to act,the counterparty still has the opportunity to request compensation for contracting fault.