Constitutive Elements Of Apparent Agency And Its Judicial Application

The purpose of the establishment of the apparent agency system is to repair the damaged agency system while maintaining transaction security and promoting the active development of the commodity economy.However,if it shows excessive protection of the counterparty and ignores the rights and interests of the principal,this is contrary to the legal value itself,and the legislative purpose has not been truly implemented.The apparent agency system should follow the principle of fairness.It should take into account the protection of reasonable trust interests and prevent private law autonomy from being violated.The conflict between these two values should be coordinated,the interests of the rights and subjects of all parties should be weighed,and the responsibilities of the subjects should be divided equally,so as to truly meet the Institutional assumptions.This article is divided into four parts:The first part is the investigation of the constituent elements of apparent agency in our country.The first is to sort out the current provisions of Chinese laws and their judicial interpretations,and the second is to sort out typical cases of judicial practice in my country.A total of more than 9,200 samples of related cases concluded by the people’s courts from 2016 to 2020 were selected as the research objects.It is pointed out that the current legal provisions in our country are based on the fact that the counterparty can reasonably rely on the appearance of rights to establish an apparent agency,and the attribution of the principal is not reflected in the legal norms;the ambiguity of the legal norms leads to chaos in judicial practice,and similar cases are sometimes judged differently.occur.It is necessary to conduct an in-depth discussion on the constituent elements of apparent agency in order to alleviate the dilemma of judicial application.The second part is a discussion on the basis of apparent agency value.Whether the principal’s attributability can be regarded as a constitutive element for the establishment of apparent agency has been the focus of debate in the academic circles.Based on this controversy,the academic circles have various theories on the constituent elements of the establishment of apparent agency,such as the "single element theory","dual element theory","new single element theory" and "new dual element theory".It is proposed that the constituent elements of apparent agency should meet the memory requirements of the principle of fairness,and at the same time,it should also take into account the viewpoints of private law autonomy and reasonable trust protection.The third part is a discussion of the legitimacy of the principal’s accountability as a constitutive element of apparent agency.By analyzing the standard theory of principal attributability,it is clear that the risk principle has legitimacy.Analyze and evaluate relevant extraterritorial legal systems.This paper proposes and demonstrates the feasibility and necessity of referring to the principle of accountability of principal in the system of bona fide acquisition for reference to the constitutive elements of apparent agency.In addition,when proposing and demonstrating that the subject of responsibility cannot be confirmed under special circumstances,the necessity of following the principle of fairness should be an appropriate supplement.The fourth part is the discussion on the perfection of the system of constituting elements of apparent agency and the specific rules of judicial application.On the basis of theoretical research,empirical analysis and normative analysis,etc.,it is proposed that the "double-important theory" should be adopted for the constitutive elements of apparent agency.One is that the counterparty has good faith and reasonable trust in the appearance of the power of agency without fault,and the other is the principal.It is attributable to the creation of the appearance of rights.At the same time,the risk principle should be introduced as a standard,and the division of responsibilities should be clarified in combination with the control scope and control ability of risks between the principal and the counterparty.Propose and discuss the opinions and specific plans that the principal has attributable causes to be typified.The principal grants others the appearance certificate of rights,the principal knows or should know that the other person has no right to act but does not prevent it,and the principal agrees with others.The existence of a duty relationship between the actors,the existence of other relationships between the principal and the actor,the failure to recover the certificate of rights after the termination of the agency relationship or the notification of the counterparty are the reasons for accountability.To sum up,on the basis of empirical analysis,theoretical discussion and comparative research,this paper puts forward more specific identification standards and improvement suggestions for the judicial application of the apparent agency system in my country,and makes different judgments on the same imputation cause in judicial practice.The issue of different referee scales has theoretical significance and practical value.