What Is a Proxy List?

Apparent agency means that although the actor actually does not have the right of agency, the counterparty has reason to believe that the actor has the right of agency and engage in legal acts with him. Apparent agency is also a non-authorized agent in a broad sense, but in order to protect the trusting interests of third parties in good faith and the security of transactions, the law compels the principal to bear its legal consequences. ^[1]

Apparent Agent

Apparent agency means that although the actor has no agency right, due to his own behavior,

According to the concept and legislative provisions of the above mentioned agency, it can be seen that the agency should have the following constitutional conditions:

1. Required person

1. Perpetrator enforcement

First, the appearance of the agent reflects the choice of the parties without fault. Apparent agency means that the agent does not have the right of agency, but the counterparty has sufficient reason to believe that the agent has the right of agency. In this case, the result of the legal act between the counterparty and the agent shall be borne by me. In the case of showing an agent, the third person must be in good faith without fault, and there is no dispute on this point in either the theoretical or practical world.

Secondly, under the circumstance of market economy, apparent agency is a legal balance of the interests of the parties and further safeguards social fairness and justice. Some scholars believe that the appearance of the agent is to ensure the dynamic security of the property, and some scholars believe that the appearance of the agent is to ensure both dynamic security and static security.

Third, manifest agency is the manifestation of efficiency over fairness. Judging from the rules of manifestation, although the counterpart has good reason to believe that the agent represents himself, he does not actually represent himself. In the case that the agent does not represent me, I do not agree to accept the results of the agent's actions, and I have no fault, making me responsible for the consequences of the agent's actions is essentially a coercion of my will. However, on the other hand, the construction of the system of apparent agency is largely due to the fact that the property and reputation of the agent are not enough to protect the interests of the good-faith counterparty. Responsible for the behavior, the rights and interests of the counterparty in good faith cannot be protected, and property rights are bound to be lost.

Therefore, it is a difficult choice to express whether the agent is protecting the rights of the person without fault or the rights of a good-faith counterparty. From the legal value of the rights and interests of the two, not protecting my rights and interests is just a loss of a civil subject (in some cases, there is not necessarily a loss, such as the full performance of an agent and a counterparty signed by the agent and the counterparty. Contract), without protecting the rights and interests of a bona fide counterparty, will not only affect the rights and interests of a bona fide counterparty, it will affect the confidence of civil subjects to participate in market activities, change the number of market subjects, reduce market activities, disrupt market order, Reduce the efficiency of the market economy. ^[2]

According to the relevant provisions of Article 49 of the Contract Law , in China's current civil legislation, there are three forms of manifestation agency. See Authorized Representation Table,

1. Apparent agency is established, and the contract entered into is valid. Apparent counterparts in the agency do not enjoy the right of revocation stipulated in Article 48 of the Contract Law. Paragraph 1 of Article 48 of the Contract Law of the People's Republic of China stipulates that: the agent concludes a contract in the name of the agent after the agent has no agency right, surpasses the agency right, or terminates the agency right. If legal effect occurs, the actor shall bear civil liability. Paragraph 2 provides that the counterparty may urge the principal to be ratified within one month. Before the contract is ratified, the bona fide counterparty has the right to cancel it. The revocation shall be made by notifying the other party. The "unauthorized agent" referred to in this article shall be a non-authorized agent in the narrow sense. In this case, the counterparty has the right to cancel. And although the case of an apparent agent stipulated in Article 49 of the Contract Law is also an unauthorized agent, this situation belongs to a generalized unauthorized agent, which is different from the narrowly defined unauthorized agent in the provisions of Article 48. The fundamental difference is that : Is there an objective fact that gives a counterparty reason to believe that an agent who has no agency right has agency right? Although an apparent agent is not an authorized agent, as long as there is the fact that the counterparty has reason to believe that the actor has the right of agency, and the apparent agent is established, the agent's agent behavior should be treated as an effective agent; in this case, The contract signed should be

Apparent Acting Overseas Legislation

The so-called apparent agency means that although the actor has no right of agency, the good faith counterparty objectively has reason to believe that the actor has the right of agency, and instead of a civil act, the consequences of the civil act are directly borne by the principal. Historically, the apparent agency system began in the German Civil Code in 1900. The German Civil Code Articles 170-172 stipulate three situations that German civil law scholars consider to be an appearance agent: the appearance agent after the right of the agent has been eliminated; the agent notified the third party in an express way, and the agent enjoys The representation of the right of agency is represented by the agent; the principal gives the power of attorney to the agent, and the agent presents the form of the power of attorney to the third party. Articles 109, 110, and 112 of the Japanese Civil Code and Articles 169 and 107 of the "Civil Law" of Taiwan in China also stipulate the three cases of appearance of agents, the content of which is roughly the same as the German Civil Code . Corresponding to the civil law system, Anglo-American law refers to an apparent agent as an undeniable agent. Anglo-American law believes that undeniable agency is an extension of the undeniable theory in the field of agency law. Therefore, the theoretical basis of non-repudiation lies in its undeniable jurisprudence. The so-called undeniable jurisprudence means that if one party allows the other party to believe the existence of a specific legal fact, and the latter also trusts the existence of this legal fact, then the former cannot deny the existence of this fact afterwards, thereby harming the latter. Interests.

Therefore, in Anglo-American agency law, agency by estoppel, also known as estoppel, refers to an agency relationship: if the statement or behavior of one party indicates, or the third party understands, The third party in a legal relationship with a third party is its own agent. For a third party who trusts this agency relationship, the assumed agent must not deny its agency relationship with the assumed agent. , Even if the fact that the delegation of authority does not exist objectively exists. The Restatement of the United States Agency Act contains more detailed provisions on undeniable agency.

Apparent Acting Domestic Legislation

There have been more fierce debates about whether to introduce advanced theories and experiences of foreign representation agencies in China, and to establish an explicit agency system in legislation in the late 1980s and early 1990s. Many scholars believe that the provision in Article 66 of the "General Principles of Civil Law" in China that "I know that others have performed civil acts in my own name without making a statement of denial is deemed to be consent" is a "principle rule" expressing the agency system "Preliminary rules"; some scholars also believe that this rule does not meet the requirements of an appearance agent, not an appearance agent. In Anglo-American law jurisprudence, there is no unified understanding of whether silence constitutes retrospection or misrecognition, but whether it is retrospection or misrecognition, it is the principle of common law that invariants are ultimately required to bear responsibility. The civil law, however, tends to form apparent agents silently, such as the German theory of tolerant principal-agent authority and the theory of apparent principal-agent authority. According to these two theories, the principal knows that the agent is acting in his name and tolerates the action; or although the agent does not know that the agent has the activity, if the agent pays considerable attention, he can know At this time, the principal should bear the responsibility of expressing an agent. The writer is inclined to this theory. The provisions in Article 66 of the General Principles of Civil Law of China should be the preliminary provisions of the system of apparent agency.

With the further development of China's market economy, the diversification of market entities and the diversification and complication of agency behavior in the market have become increasingly apparent. Although civil law in the civil law system emphasizes that the agency system, as an extension and supplement of private law autonomy, should respect the principal's intentions and consider the interests of the principal. However, in order to maintain the security of transactions, civil law recognized the representation agency at the beginning of the last century. Transaction security is a state that the trading environment should have, that is, transactions conducted by traders based on their trust in the legitimacy of trading behavior and their legitimate expectations of the certainty of the effects of trading behavior should be affirmed by law; otherwise, the transaction The activity will force traders to be overly cautious due to their excessive danger and uncertainty, thereby suppressing the enthusiasm of engaging in trading activities. Based on this, Article 49 of China's new "Contract Law" provides for apparent agency: the actor has no agency right, surpasses the agency right, or concludes the contract in the name of the principal after the agency right is terminated. The counterparty has reason to believe that the actor has For agency rights, the agency acts effectively.

In addition to the provisions of the General Principles of the Civil Law and the Contract Law above, the author believes that there are also some provisions on representation agency scattered in the separate laws promulgated and implemented by China's legislature and the judicial interpretation of the Supreme People's Court. For example, Article 38 of China's "Partnership Enterprise Law" stipulates that: "Partnerships shall not restrict partners from performing partnership business affairs and the rights of externally representing partnership enterprises, and shall not oppose unsuspecting third parties in good faith." Article 17, paragraph (2) of the interpretation of the application of certain issues of the Marriage Law stipulates that: "The husband or wife makes important decisions on the common property of the husband and wife for non-daily needs, and the husband and wife shall negotiate on an equal basis to reach a consensus. Others have If the reason is believed to be the common intention of the husband and wife, the other party must not oppose the third party in good faith on the grounds of disagreement or ignorance. " A person believes in the agency right of a party and causes other parties to assume the responsibilities of the principal.

See agency analysis summary

China's agency system has long lacked relevant provisions on representation agency, but in order to deal with civil disputes in a timely and fair manner, the judicial organs have also dealt with many cases of representation agency in accordance with the basic principles of civil law and foreign theories and practices of representation agency. . According to relevant regulations and the combination of these cases, the author summarizes and divides the main situations of the appearance agent in real life in China as follows:

(1) See the agent if you have no agency right

From the point of view that the right of agency does not exist from the beginning, but the actor still carries out activities in the name of the principal, it is the same as the non-powered agency in the narrow sense. The reason why such an unauthorized agent constitutes an apparent agent is mainly because the principal's explicit or implied behavior leads the counterparty to believe that he has agency power, and it is a civil act, despite the fact that the principal has not granted him The right of agency still constitutes a proxy. This manifestation agent in reality mainly manifests itself in the following two situations:

1. I have indicated to a third party that I have delegated the right of proxy to another person, but I have not authorized it. For example, Zhang told his client Li before going abroad that he would entrust his friend Wang to take care of the company's business. Afterwards, Zhang didn't inform Wang about the entrustment because he rushed abroad. After Zhang went abroad, Lee found that Wang wanted to order a certain shipment of Zhang. Wang feared that his friend would lose the trading opportunity, so he entered into a contract for the sale of goods with Li. After Zhang returned to China, he found that the contract price was unreasonable, so he proposed that Wang had no agency right, and the contract was invalid from the beginning. In this case, Zhang informed Li that entrusting Wang to take care of the company's affairs while he was abroad was a declaration of authorization. Lee, as a third party in good faith, did not know and should not know that Zhang was in fact unauthorized, so that the three parties constituted Apparent agency relationship.

2. Know that others are performing civil acts in their own name without denying them. This refers to the fact that someone else is engaged in activities in his own name without fault. When I learn that others are engaged in civil activities in my own name (usually by the counterparty to urge him to do so), I should show my attitude that others have no right to act on their behalf. Different attitudes expressed by me can have different legal consequences. If I admit it, it is equivalent to granting the power to an agent without authorization after the fact. This retrospective effect has retroactive effect, causing the original unauthorized agent to become an authorized agent, and I shall bear the consequences of the agent's behavior; If I deny that I have no fault for the acts that I do not have the right to act for others, I do not have any legal binding force for the acts of the unauthorized agent and the counterparty; if I know that others are acting without the right and are not clear He stated that although he was not at fault in engaging in civil activities in his own name, he knew and did not deny that it was not innocent, which resulted in the counterpart being further convinced that the perpetrator had the right of agency, and therefore should constitute an apparent agent. For example, an engineering office once worked for an engineering bureau. After the project was completed, the engineering bureau used some of the information and materials learned during the construction of the engineering bureau to perform construction under the banner of the engineering bureau in another project. The engineering construction unit has sent several letters to ask the Engineering Bureau. The Bureau has not responded, and it is not acceptable. The construction unit claimed for the unqualified construction quality of the Agency. UNRWA did not want to take responsibility and was dissolved. The construction unit then found the Engineering Bureau to claim compensation, and the case constituted a proxy.

(2) Seeing agency beyond the agency right

Although the actor has some kind of agency power, but he engages in agency activities beyond the agency's authority, as far as the matter is beyond his authority, he still has no agency. The law requires that the principal may have restrictions on the authority of the agency, but sometimes it cannot be understood by a third party, and the external situation is manifested. If a good-faith counterparty can be mistaken to believe that the actor has the authority to act on the matter, It is a civil act, and thus constitutes an apparent agency. I shall bear the legal consequences of exceeding the authority of the apparent agency. This is the principle of "restriction of agency rights must not oppose good-faith counterparties" in modern agency systems. This manifestation agent in reality mainly manifests itself in the following four situations:

1. The branches and offices of an enterprise legal person go beyond the civil activities authorized in the name of the enterprise. The branches and offices of the enterprise have not obtained the business license of a legal person and are not qualified as a legal person. When conducting civil activities on behalf of the enterprise, they are generally given certain authority within the enterprise. However, if the internal management of the enterprise is chaotic, the offices and branches sometimes go beyond the internal authorization or regulations as a civil act for their own benefit. If these internal authorizations or regulations are not made public and are not known to a bona fide third party, the bona fide third party has reason to believe that the offices and branches have agency rights.

2. Enterprise's legal representative and employee's unauthorized agency. Generally, the legal representative of an enterprise has the usual authority to engage in business activities on behalf of the enterprise within the scope of business stipulated in the business license of the enterprise; the employee has the usual authority to work in his position, such as the authority of the material department manager to order materials and the engineer's authority over construction Authority for unit inspection and valuation. If companies have restrictions on their usual rights, they should be made public. If it is only an internal instruction or regulation and is not known to a good-faith counterparty, the enterprise shall assume the responsibility of expressing an agent for the act of exceeding the authority of the legal representative.

3 The principal shall hand over to others the documents and seals that have the significance of proving the agency right, so that others can carry out civil activities by virtue of their status as agents. The enterprise gives the seal, contract seal, blank certification letter, blank power of attorney, blank contract text, etc. to the agent to handle a certain business, mainly for the convenience of work. However, if the business handled by the agent is not what the company actually requires him to do, or although it is an authorized business, but the price and quantity exceed the actual authorization of the company, the good faith counterparty does not know. A civil act constitutes an apparent proxy. An enterprise cannot refuse to assume the responsibility of showing an agent on the ground that "actually failed to account for the agent as a legal act". Many units have lax management of this, and the personnel of this unit are free to carry it on business trips, fill it out temporarily, and some even give it to the personnel of external units for use. When these personnel sign the contract, if they think it is not good for themselves, they will carry out unauthorized authorization. Do not assume the consequences of agency. Because these documents and seals are generally associated with a specific subject and have specificity, the fact that the actor holds documents and seals with proof of agency rights is an objective fact that can easily make the opposite person mistakenly believe that they have The right of agency, although some of the unauthorized agents only use the name of the principal for their own benefit, for the principal, the application of the appearance of the proxy cannot be completely ruled out.

4 Operating activities that are beyond the scope of the docking agreement in the docking operation are beyond the agency right. The so-called linked operation means that some units in the society (the anchored units) allow some collective units or individuals who have not gone through the industrial and commercial registration to obtain a business license, or although they have registered to obtain a business license, but for business convenience and tax reasons, Individual industrial and commercial households, private enterprises, etc. who do not want to use their own names, apply the names, seals, and accounts of these units to engage in external civil activities, and the anchored units charge "management fees" and "handling fees." Anchor business activities have not risen to the point of resorting to law to resolve the problem. Although the anchor unit conducts business activities in the name of the anchor unit, it often enjoys its own benefits and assumes responsibility. The anchor unit is within the scope of the anchor agreement or within the scope of authorization. To carry out business activities in the name of the affiliated unit, it shall be the right to act as an agent. If the affiliated unit does not bear responsibility or is unable to bear responsibility, it must be borne by the affiliated unit. In addition to the foregoing, there are also a large number of real-world economic interactions in which an affiliate fails to comply with its affiliation agreement with the affiliated unit, and still conducts business activities in the unauthorized area in the name of the affiliated unit. Once the affiliated unit cannot bear responsibility, The counterparty will directly seek relief from the attached unit. At this time, the anchored unit often refuses to take responsibility for the reason that the unauthorized unit or the anchored unit violates the agreement. In this kind of activity, the counterparty generally thinks that the affiliated unit belongs to the affiliated unit, or although it is known that the affiliated unit is known, but it is difficult to distinguish between those who have the right to affiliate and those who have no right to affiliate. proxy. Therefore, the anchored unit shall bear the consequences of such an appearance agent. Linking in certain areas has been banned. For example, in September 2000, the Ministry of Foreign Trade and Economic Cooperation and the State Administration of Taxation issued a ban on linking and borrowing operations in the import and export industry. Therefore, illegal docking operations are subject to administrative penalties. However, the author believes that this does not affect the apparent agency responsibility of a good-faith counterpart who claims that the anchored unit has exceeded its authority.

(3) After the termination of agency right, see the agency.

The actor originally enjoyed the power of agency, but for some reason the power of agency has been terminated. In this case, he still acts as an agent as a civil act, and at this time his agency has no right to act. If the negligent counterparty does not know that the right of agency has been terminated due to the fault of the principal, and still believes that the perpetrator has the right of agency, it can constitute an apparent proxy. There are two main situations:

1. Agency after the agency period has expired or the agency transaction is completed. The written power of attorney or the relevant authorization notice shall specify the period of agency and the agency affairs in accordance with the law. If I have not specifically stipulated it, as long as the counterparty in good faith is still unaware of the situation, the civil act with the agent is Established table see agent.

2. I cancel the commissioned agency. The right of agency can be revoked according to the intention of the person. This kind of revocation is a unilateral legal act, and the legal effect of the revocation notice upon reaching the agent will result in the agent losing the right of agency. In order to prevent the original agent from performing unauthorized acts to others, I should take measures such as withdrawing the agency certificate, notifying a third party, or issuing advertisements that revoke the agency right. If I fail to do so, causing the counterparty to be unaware that the right of agency has been revoked, and the civil act is still a civil act with the agent, it constitutes an apparent agent. For example, banks and credit unions revoke agent stations and dismiss agents, but did not inform villagers and residents within the agency's scope that all passbooks in the agent's hands were not recovered. The agents still absorbed deposits in the name of the agent stations and issued passbooks. The resulting disputes, even if the agent violates the law, or even constitutes a crime, banks and credit unions should still bear the responsibility of showing agents to pay depositors' deposits.