论意定代理授权行为的取消——兼释《民法总则》第173条第2项前半句

On the Revocation of Authorization of Agency by Mandate——also on the First Half of Paragraph 2 of Article 173 of GPCL of PRC

《民法总则》第173条第2项前半句规定的"取消委托"不应解释为意定代理内部基础关系的无效或失效,而应解释为授权行为生效后非由于意思瑕疵被收回。授权行为生效后非由于意思瑕疵被收回也不应被界定为"撤回"或"撤销",而应界定为"取消"。这样才能使《民法总则》第173条第2项前半句规定的"取消"实至名归,才能确保意定代理制度中导致授权行为不生效或者丧失效力的三种意定事由在概念和逻辑上的清晰与和谐,也才能使民法典意定代理法的相关概念和规则与欧美代理法中的通行做法接轨。

The term 'cancel the mandate' in paragraph 2 of Article 173 of the General Provisions of the Civil Law of the People’s Republic of China shall be construed as the recall of authorization not based on the defects of declaration of will after it becomes effective rather than the internal relationship of agency by mandate become void or invalid. The recall of authorization not based on the defects of declaration of will after it becomes effective should be defined as Revocation instead of Withdrawal or Avoidance. Defining the term as mentioned above is the only method to:( a) make the term ' cancel the mandate' in paragraph 2 of Article173 of the General Provisions of the Civil Law of the People’s Republic of China workable;( b) ensure the clarity and harmony of those three acts based on declaration of will that cause authorizations become invalid or become ineffective in the agency by mandate system conceptually and logically;( c) make those concepts and rules in the Law of Agency by Mandate be in line with norms and practices in the Law of Agency in western countries.