论表见代理的法律价值及构成要件——兼论《合同法》第49条之缺陷及完善

On the Legal Value and Constitution Factors of the Agency by Estoppels——Concurrently on the Flaw and Consummation of the 49th in Contract Law

表见代理制度的法律价值在于侧重保护善意第三人利益以保护动的交易安全,同时兼顾无过失被代理人利益以维护静的交易安全;构成表见代理必须具备外观事实、第三人善意无过失、被代理人无过错三要件,在被代理人过错问题上应适用过错推定。我国合同法关于表见代理的规定存在明显缺陷,需要进一步完善。

The legal value of agency by estoppels lies in the transaction security protection of the third person with good intentions, simultaneously gives dual attention for the static transaction security of the agent benefit with no error; constitution agency by estoppels should have three important documents： the outward appearance fact, the third person with good intentions have no error, the agent have no mistake, in mistake issues of the principal, we should suit the rule of presumption of fault. The contract law of our country has the obvious flaw in stipulation about agency by estoppels, which needs further perfection.