The Construction Of A Commercial Agency System In The Era Of The Civil Code

The commercial agency system plays an active role in commercial activities.At the legal level,the current norms of commercial agency and civil agency in China are unified in the Civil Code.However,there are obvious differences between commercial agency and civil agency in terms of their historical development,the origin of agency,the trend of values,the implementation of agency acts and the legal responsibilities of the agent and the represented,which have their typical characteristics.This determines that it cannot simply be understood as a special form of civil agency.Therefore,the existing agency system in the Civil Code cannot meet the needs of commercial agency practice,and it is necessary to reconstruct a systematic commercial agency system.There are two types of agency in the practice of commercial agency,namely,commercial office agency and agent agency.By analysing the relationship between the representation and agency rights of the legal representative of a commercial entity and the characteristics of the managerial rights of the manager of a commercial entity,it is found that it is reasonable to include part of the functional agency of a commercial entity in the scope of commercial agency and to construct a corresponding system;while agent agency,as a widely used commercial agency model,should still be focused on in the construction of the commercial agency system.By analysing the legal relationships in commercial agency and taking into account the practice of commercial agency,it was found that there are still many shortcomings in the application of the relevant rules on civil agency in the Civil Code to regulate commercial agency activities: in respect of functional agency,the concept of "functional agency" is not clearly defined in the legislation,there is no balance between the interests of the agent and the third party in the case of powerless agency and apparent agency.In the area of agency,the concept of "agency in office" is not clearly defined in the legislation,there is no balanced protection of the interests of the agent and the third party in the case of powerless agency and apparent agency,and the form and scope of authorisation of commercial agency for managers and other business users is unclear.In respect of agency of agents,indirect agency is not included in the scope of agency rules,the application of the rule of arbitrary termination of a commission contract to a commercial agency contract is clearly inappropriate,there is a lack of regulation of the subsequent rights and obligations of the principal and the agent after the termination of the commission contract,and the issue of the validity of "own agency" and "mutual agency" also deserves further consideration.The issue of determining the validity of "own agency" and "mutual agency" also deserves further discussion.In addition to the basic rules on civil agency in the Civil Code,many of China’s commercial special laws,administrative regulations and individual local regulations also set out provisions regulating a specific type of commercial agency relationship.However,they are not systematic and not universally applicable,and can only provide a limited reference for improving and structuring the commercial agency system.On the basis of the above analysis,this article proposes that,against the background of the promulgation and implementation of the Civil Code,it is a more feasible way to construct a system by adopting the model of a separate commercial law to harmonise the specific rules of commercial agency in the Civil Code and the subordinate laws.In terms of specific institutional construction,the concept of commercial agency should be clearly adopted in respect of office agency;the definition and validity of the legal representative’s powerless agency and apparent representation should be standardised and unified;the subject and form of authorisation of commercial agency for managers and other commercial users,the scope and limitations of agency and the publicity of agency should be clarified.In relation to agency,the system of rights and obligations of agents should be improved;the rules for the termination of commercial agency contracts should be improved;the validity of own agency and the acts of agency of both parties should be re-evaluated;the rules for the compensation of expected benefits of agents should be established;the legitimate rights and interests of agents,such as the right to claim commissions and commercial liens,should be clarified;and the establishment and use of a credibility evaluation system for agents should be stipulated.In this way,a coherent and functional commercial agency system will be constructed.