On The Applicability Of Evidence Agency

The apparent agency system plays an important role in the economic communication of modern society.Search for relevant civil judgments in "Wusong" using "construction engineering" and "apparent agency" as keywords.It can be found that in the field of construction engineering,some courts believe that the attribution of the principal is a constitutive element of apparent agency,which is inconsistent with the academic circles.There are also differences in the legal provisions cited in the judgment.Regarding Article 49 of the "Contract Law of the People’s Republic of China",or Article 172 of the "General Principles of the Civil Law of the People’s Republic of China",or other legal provisions,judicial practice has not been able to form a unified standard.The "Civil Code of the People’s Republic of China" came into effect in this context.When an unauthorized agent engages in unauthorized agency activities externally,in order to win the trust of the counterparty,they often take actions that are different from similar cases in other fields,such as forging seals.At the same time,there is usually a labor relationship between the unauthorized agent and the principal in the field of construction engineering,which makes the behavior objectively more confusing.The third paragraph of Article 61 of the "Civil Code of the People’s Republic of China" is considered to be the provision on the representation of the representative.The second paragraph of Article 170 refers to the agency requirement for job descriptions,and Article 172 refers to the general agency requirements.The basis for the above conclusion is the description of the identity of the perpetrator in the above-mentioned law.The third paragraph of Article 61 stipulates that the company’s articles of association or the authority’s restrictions on the representation of the legal representative shall not confront bona fide third parties.This provision limits the subject of action to the legal representative.Therefore,the applicable subject of Article 61 is the legal representative.Article 170 stipulates that legal persons or unincorporated organizations shall restrict the scope of powers of persons performing work tasks and shall not confront bona fide third parties.The law restricts actors to persons who perform work tasks.Taking into account that the legal representative is also a person who performs work tasks,the applicable subject of Article 170 is personnel who perform work tasks other than the legal representative.Article 172 There are no special provisions on the identity of the actors.This law applies to actors other than legal representatives and other personnel performing work tasks.Accurate application of the law requires the judge to accurately grasp the identity of the actor,and determine whether the actor’s behavior should be characterized as a representative behavior,a professional agency behavior,or a general agency behavior.The establishment of an agency first requires that the perpetrator has no agency rights.The fact that the actor has no agency power is a description of objective facts,and it can be judged whether the facts exist objectively through relevant evidence materials.However,the objective fact has nothing to do with whether the appearance of agency power is formed objectively,whether the subjective trust generated by the counterpart is reasonable,and the result of the court’s inference and determination based on relevant evidence materials.The establishment of an apparent agency also requires an objective appearance of agency.The formation of the representation of agency rights requires the behavior of the perpetrator to have strong representational power.Illegal acts will not form the appearance of agency rights,because although illegal acts can produce the appearance of being granted agency rights,the principal is not involved in the formation of this appearance,and there is a relationship between the illegal act and the representation of the principal’s true intentions.A presumption protected by law cannot be formed.Therefore,the counterparty cannot claim that the perpetrator has the appearance of agency power just because the perpetrator has committed illegal acts such as forged seals.On the subjective side,the counterparty is required to be "good faith and no fault." "Good faith" refers to the fact that the counterpart does not know the fact that the perpetrator has not been granted the power of agency.Whether there is "negligence" needs to be judged according to the specific circumstances of the counterparty.The risk prevention and control capabilities and attention capabilities of commercial entities and natural persons are different.If the counterparty is a commercial legal person or a natural person who specializes in certain activities,both risk prevention and control ability or cognitive ability has a higher level than the general subject,and higher standards should be put forward for its duty of care.Therefore,it is more appropriate to adopt the abstract minor negligence standard to determine whether the counterparty is at fault.The principle of self-responsibility means that the attributable element of the principal is of great significance to the establishment of an apparent agency.If the formation of the appearance of objective rights cannot be attributed to the behavior of the principal,but it is responsible for the adverse consequences,the principal shall bear responsibility for the behavior of others in violation of his true intentions.This excessively protects the interests of the counterparts and restricts and restricts the freedom of conduct of the subjects of civil and commercial activities.