表见之被代理人可归责性探讨

A probe into the attributability of the agent who appears to be the subject

表见代理是我国民法中一项重要的民事法律制度,其构成要件早在《合同法》的起草过程中就产生了两种学说,现在法律对于表见代理的构成要件中是否应当考虑被代理人可归责性因素仍然留白。随着市场交易的快速发展,交易安全的考虑越来越受到人们的重视,表见代理的案例也逐渐增多,表见代理制度本身的缺陷也随之显现,为弥补缺陷应当将被代理人的可归责性因素加入到其构成要件之中且应参照风险归责的标准予以判断。

Apparent agency is an important civil legal system in China's civil law. Its constituent elements have two theories in the drafting process of Contract Law. Whether the attributable factors of the principal should be taken into account in the constituent elements of apparent agency is still blank. With the rapid development of market transactions, people pay more and more attention to the consideration of transaction security, and the cases of apparent agency are increasing. The defects of apparent agency system itself also appear. In order to remedy the defects, the attributable factors of agents should be added to its constituent elements and should be judged by referring to the criteria of risk attribution.