Research On Compensation Liability Of Unauthorized Agent In Narrow Sense

The development of agency system has undoubtedly brought many conveniences to the economy and society,and also provided a broad space for transactions between the parties.Compared with the previous legal provisions,China’s civil code further clarifies the compensation liability system of unauthorized agent in a narrow sense,but there are still many ambiguities.Through the analysis of the application of the existing provisions on the liability of unauthorized agents,it is found that there are three main problems: first,whether the narrow unauthorized agents need to consider their subjective factors;The second is that when the counterpart exercises the right of choice,it is required to be "good faith" subjectively,but there are no specific provisions on how to interpret the "good faith" standard and how to distinguish it from the "good faith" of the counterpart in apparent agency,resulting in the confusion between apparent agency and narrow unauthorized agency in judicial practice;Third,there is no positive answer about whether the scope of compensation for damages of unauthorized agents in the narrow sense is compensation for performing interests or compensation for reliance interests.Therefore,the compensation liability system of unauthorized agents in the narrow sense still needs to be further refined and improved.To solve the above three problems,we must first clarify the nature of the liability of the unauthorized agent in a narrow sense.Through the analysis of the five existing liability properties in theory,namely tort liability,contract liability,contracting fault liability,implied guarantee liability and special legal liability,it is found that any one of the liability properties can not meet the provisions of paragraphs 3 and 4 at the same time,The theory of special legal liability covers both no fault liability and legal guarantee liability.Therefore,the nature of the liability of unauthorized agent in paragraph 3 should be special legal liability;In paragraph 4,the liability is shared according to the fault degree of both parties,which is consistent with the purpose of contracting fault liability.The nature of liability in paragraph 4 should be contracting fault liability.Secondly,the standard of "good faith" of the opposite party is related to the balance of interests between the unauthorized agent and the opposite party.Therefore,from the perspective of interest measurement,the "good faith" of the opposite party should be interpreted as "unknown and no gross negligence",that is,the opposite party has no knowledge of the facts of the agent without agency power and has the obligation of formal review,which can constitute "good faith".Finally,the problem of what kind of responsibility and scope of responsibility of the unauthorized agent in a narrow sense is inseparable from the subjective state of the unauthorized agent.The premise for the exercise of the relative person’s right of choice is to distinguish the subjective state of the unauthorized agent,respect the relative person’s choice when the agent knows that there is no right of agency,and limit the relative person’s right of choice to liability for damages,that is,compensation for reliance interests,when the agent knows nothing or does not know because of negligence.To sum up,the further development and improvement of the liability system of unauthorized agents need to refine the relevant provisions of article 171 of the civil code,better balance the interests between unauthorized agents and counterparts,and maintain transaction security.