间接代理宜逸出民法总则

General Provisions of Civil Code Shall Not Stipulate Indirect Agency

通过间接代理的现行法考察和间接代理的立法歧见分析可以发现,民法总则只规定隐名代理,而使间接代理逸出民法总则的立法安排是相对最优的选择。民法总则应以直接代理为一般规则,并规定作为显名原则之缓和的隐名代理。间接代理不具备民法总则所应具备的抽象性,可以作为学理概念,保持张力和弹性,为商事代理制度留下伸展空间。

Based on the analysis of the present law of indirect agency and legislative differences of indirect agency, it＇s found that General Provisions of Civil Code only provides unnamed agency. So the legislative arrangement of making indirect agency isolated from General Provisions of Civil Code is a relatively optimal choice. General Provisions of Civil Code should set direct agency as a general rule, and stipulate unnamed agency, an alleviation of agency of named principal. Therefore, indirect agency that does not share the abstraction of General Provisions of Civil Code should not be incorporated into General Provisions of Civil Code, but should be used as a theoretical concept to maintain tension and flexibility leaving room for commercial agency.