Research On The Application Of Law Of Apparent Agency In The Field Of Construction Engineering

Apparent agency is a rule formed for trust protection and transaction security.It is clearly stipulated in Article 172 of the "Civil Code of the People’s Republic of China" passed in 2020,but its meaning,constituent elements,and responsibility There are still disputes,especially in the field of construction engineering.In the construction industry,there are a large number of situations in which contracts are signed or actually performed in the name of units,project managers and even individuals.The types of contracts involved include buying and selling,leasing,settlement,and financing loans.Firstly,this paper discusses the distinction between causal and non-causal choices of authorization behavior,duty behavior and apparent agency.When these two parts are observed from the perspective of construction projects,we can more specifically feel the impact of different path choices on follow-up review.method and responsibility for the impact.The causal path,supplemented by the apparent agency system,can provide more flexible protection for the counterparty.As for the subject of contract performance,it should be judged first whether it constitutes a duty act,and then whether it constitutes an apparent agency.If neither of them is established,then it is an individual act,and the determination of the duty act should conform to the four elements of identity,power,name,and purpose.The second is the widely recognized but complex constituent elements in apparent agency—the appearance of the power of agency and the determination of the counterparty’s good faith and no fault.These two elements should be distinguished rather than the latter being built into the former.Therefore,the scope of the appearance of the power of agency is relatively Narrowly,in the field of construction engineering,there are usually only four appearances of power of attorney,the company seal,the identity of the project manager and the omission of the principal.However,the requirement of good faith and no fault of the counterparty is relatively independent and covers a wide range.Among them,if the counterparty is aware of the fact of the affiliation,since both parties of the affiliation generally operate independently and account for themselves,the counterparty should not be deemed to have good faith at this time.With regard to the imputable elements of the principal in the field of construction engineering,combined with the characteristics of the representation of agency rights in construction projects that are often closely related to the principal and the legal terms,the appearance of agency rights and the reasonable trust of the counterparty are sufficient to take into account and properly express the principal’s Accountability,therefore,should not be highlighted.Finally,this paper discusses the legal liability issues involved in the apparent agency.The external procurement and leasing contracts established by the actual constructor are not based on the qualifications of the affiliated person.Therefore,the stipulation that the affiliated parties bear joint and several liability for the contractor cannot be extended to For other entities,if an apparent agency is not established,the actual builder will perform the contract;if an apparent agency is established,the affiliated enterprise shall bear the responsibility,and there is no joint and several liability or supplementary liability.Whether the counterparty can freely claim the effect of apparent agency or non-authorized agency in the narrow sense shall be discussed in stages,which are divided into pre-acceptance and post-acceptance.In addition,the agent without authority shall be liable to the principal,and the basis of the claim is contractual liability or tort liability.