A Study On The Right Of Daily Household Agency In The Civil Code

The Daily Household Agency system originated from the ancient Roman law,and the later continental law system countries followed the daily Household Agency system of the ancient Roman law.Although there is no concept of daily Household Agency system in common law system,there are some similar concepts,such as "agency system formed by cohabitation".With the development of the Times,this system has gradually evolved from endowing only one wife with rights,to endowing both husband and wife with rights.Before the promulgation of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the system of daily family agency power was seldom embodied,article 17 of the 2001 interpretation of the Supreme People’s Court on certain issues concerning the application of the marriage law of the People’s Republic of China(1)(hereinafter referred to as the judicial interpretation of marriage(1))stipulates that husband and wife shall have equal right to handle their common property,however,the legislation does not clearly define the day-to-day family agency system.The promulgation of the Civil Code fills the legislative gaps,defines the scope of the internal and external subjects of the system of daily Family Agency,defines its internal and external effects,and clarifies the internal and external effects of the husband and wife’s common debt burden,the special rules that the husband and wife do not take effect internally and externally when they exercise the right of daily household agency have been established.It is clear that the system of daily family agency is the basis of the presumption of the common meaning of debt,which upholds the value idea and basic principle of equality between men and women,and guarantees the substantive equality of rights of husband and wife.The purpose of introducing the legislation of the daily family agency system is to improve the efficiency of both men and women in dealing with the daily affairs of the family,at the same time to protect the legitimate rights and interests of the third party,to guarantee the safety of transactions,and to promote the orderly and stable development of the market economy.However,the "Civil Code" does not specify the scope of application and effectiveness of the system of daily Family Agency,nor has it formulated the rules of abuse and limitation of the system of daily Family Agency,it may not only damage the harmonious relationship between husband and wife,but also damage the rights and interests of the third party.Therefore,it is a long way to perfect the system of daily Household Agency.In order to perfect the daily family agency system,we should start from clarifying its scope of application and validity,adding its abuse and limitation rules,and combine our country’s judicial practice,learn from the relative mature legislative experience of Foreign Countries and the suggestions of relevant scholars,to ensure the thoroughness and preciseness of the daily household agency system is in line with the aim of establishing the daily household agency system.In terms of clarifying the scope of application and the scope of effect,we should adopt the method of combining objectivism with subjectivism,make clear the scope of "the needs of daily family life",and make clear the duty of care and subjective consciousness when the third party acts as a legal act.Regarding the rules of abuse and limitation,different provisions should be made for the abuse of the daily household agency according to the subjective consciousness of the parties concerned,and the issue of the internal recovery of the abuse of the daily Household Agency between husband and wife should be made clear,individual notice combined with public registration is used to stipulate that the restriction of the right of daily household agency can be used against the third party,and to limit the abuse of the right of daily Household Agency by one of the spouses.