代理制度如何贯彻私法自治《民法总则》代理制度评述

How the Agency System Implements the Autonomy of Private Law Comments on the Agency System in General Provisions of Civil Law of thePeople?s Republic of China

民法总则》关于代理的规定,是在民事法律重述意义上展开的。《民法通则》《合同法》等现行法紧扣以本人名义实施行为和代理权这两个代理的基本构成要素,逐步建立起代理制度之个别规范、规整之间及其与主导原则间的意义脉络,其中主导原则为私法自治,而体现协作作用的则为信赖责任原则,后者经由表见代理等个别规范的建立而被具体化。《民法总则》通过整合,将其意义脉络更为清晰地内部体系化,但其工作并不彻底。这些整合或创新的缺失,有的可经由解释或法律的续造予以弥补,有的则因法政策的不确定性而可能成为立法的遗憾。

The Agency System regulated in the General Provisions of Civil Law of the People＇s Republic of China is outspread in a degree of restatement of civil law. Existing laws such as the General Principles of Civil Law, Contract Law and so on, which focus closely on two basic components including performing in the name of the principal and the authority for agency, have gradually built up the context among individual norms, regulations and the dominant principle of the agency system. The dominant principle is the autonomy of private law, and the cooperating effect is reflected by the reliance--liability principle that is concretized by forming the apparent agency and other individual norms. By integrating, the context in the General Provisions of Civil Law becomes intrinsically systematized in a clearer way. However, such process has not been completed yet. Some of those lacked integrating or innovating work could be supplemented by construing or renewing law, while some might become a regret of legislation because of the uncertainty of legislative policy.