Research On The Liability Of Unauthorized Agent

In the field of civil law in China,the discussion on the liability of the unauthorized agent has never been interrupted,and the regulation of the liability of the unauthorized agent in Article 171 of the Civil Code is relatively perfect,however,it still inevitably has some unclear contents,which makes the academic circles have different understanding of it.On the basis of sorting out the relevant disputes in the academic circle,this paper clarifies the theoretical issues of the liability of unauthorized agent,so as to give a clear explanation to this norm and make it applicable accurately in judicial practice.The main body of this paper is divided into five parts:The first part is a brief introduction to the basic concept of the liability of unauthorized agent.Firstly,this paper explains the meaning of unauthorized agency,and defines the connotation of the liability of unauthorized agent.Unauthorized Agency is divided into broad sense and narrow sense.The object of this paper is the responsibility of the actor to the opposite party in the narrow sense of unauthorized agency.The second part is about the discussion of the related legislation and theoretical disputes on the liability of unauthorized agent.On the one hand,on the basis of analyzing the differences between our country’s law and Germany’s and Japan’s legislation on the liability of unauthorized agent,there is a dispute in the academic circle on whether it is reasonable to exclude the protection to the relative person in bad faith completely,and whether it is reasonable to give equal protection to the relative person in good faith without distinguishing the subjective state of the actor in our country’s law.on the other hand,even though it is essentially the same as the provisions of comparative law,since the provisions of Article 171 of the Civil Code are not sufficiently specific and explicit,this makes the scholars have different opinions on the identification of the relative’s good faith or bad faith,the identification of the nature of the liability of the unauthorized agent and the specific responsibility of the actor.Against this background,it is necessary to clarify the controversial contents in the academic circle and concretize the provision so as to make it more suitable for judicial practice.The third part is the analysis of the nature of the liability of unauthorized agent.The nature of responsibility will to a certain extent affect the way and scope of responsibility,so it must first be clear.In view of the fact that the responsibility of the actor to the opposite party under relative’s different subjective conditions is different,it is necessary to define the criterion of the relative’s good faith before the nature of the liability of the unauthorized agent is determined.This paper holds that the relative in good faith should not know and should not know the lack of the agent of the actor is not due to negligence,even if the relative does not know the lack of the agent of the actor is only due to general negligence,it will be regarded as the malicious relative.On the premise of identifying the subjective state of the relative person,this paper defines the liability of the actor to the relative person in good faith as the legal guarantee liability,and the liability of the actor to the relative person in bad faith as the Culpa in contrahendo liability.The fourth part is about the analysis of the actor’s liability.Since the nature of the liability of the unauthorized agent is different when the relative person is in good faith or in bad faith,this paper also distinguishes the two different cases of the relative person in good faith or in bad faith.As for the former,this paper holds that it is not necessary to distinguish the subjective state of the actor from his liability,and it is necessary to recognize and limit the liability for performing debts,and it is necessary to regard the loss of performing interests of the opposite party as the scope of liability for damages,the scope of the liability for damages shall be limited by the benefit that the other party can obtain when the act is valid for the principal.As for the latter,through analysis,this paper holds that the malicious relative person should be protected,and as far as the specific responsibility of the actor to the malicious relative person is concerned,if there is prior agreement between the two parties,that the agreement shall be accepted,provided that it is not contrary to the mandatory provisions of the law,and that the actor shall be liable directly in accordance with the agreement,otherwise paragraph 4 of the article shall apply to the assumption of responsibility,that is to say,the actor should be responsible to the opposite party according to the legal principle of contracting fault,and there is space for the fault offset.The fifth part is the suggestion to refine the articles about the liability of unauthorized agent.In this part,the conclusions from the previous analysis are summarized.On the basis of affirming the appropriateness of Article 171 of the Civil Code,this paper puts forward corresponding suggestions on the elaboration of the less specific contents in the norms of the liability of unauthorized agents,with a view to making detailed provisions through judicial interpretation in the future,and has made the preliminary design to the future judicial interpretation provision.