论我国的商事职务代理制度及其完善——兼析《民法总则》第170条

Research and Improvement on the Commercial Duty Agency System of China

商事职务代理制度是指代理人基于法人或者非法人组织内部所任职务,对外代理商事组织处理具有营利性、反复性、长期性、持续性特点的商事活动,法律后果归属于商事组织体的一种制度。商事职务代理制度本质上是一种归责制度,其内容可以概括为三个主体、一个行为,核心是判断商事职务代理人的职权范围以及超越职权范围的效果归属。《民法总则》第170条第2款中的“不得对抗善意第三人”实际上是对法人或者非法人组织决议效力内外有别的一种强调,不能直接等同于代理行为有效,需要结合商事表见代理的规则予以解决。对商事职务表见代理的判断则应结合具体职权类型、第三人信赖的处置行为及其合理性、被代理人的可归责性等因素在个案中进行权衡。在民法典编纂之外,建议制定《商事通则》,并将商事职务代理细化为经理权和经理以外的商业辅助人权。

The commercial duty agency system refers to the agent who is granted a position by incorporated organizations or unincorporated organizations to handle commercial activities that are characterized by profitability, repeatability, long-term and continuity. And the legal effect of commercial activities belongs to the commercial body. The essence of commercial duty agency system is an imputation system. Its contents can be summarized as three subjects, one action. The core content of this system is to judge the scope of authority of the agent and the attribution of legal effect when the agent exceeds his authority."Being not allowed to oppose a third party with good will" which is stipulated in the article 170 (2) of general rules of the civil law means that the legal effect of Incorporated organizations or unincorporated organizations's resolution should be distinguished as inside and outside. So judging the legal effect of the resolution ought to combine with commercial apparent agency rather than make it effective. The application of commercial apparent agency in specific cases should consider a variety of factors including specific types of authority > the behavior and rationality of the third party based on the authenticity of the agency、behaviors of the principal. In addition to codification of civil code, I advice that we can enact general principles of commercial law and divide commercial duty agency into manager right and other business assistant's right.