再论意定代理权授予之无因性

Rethought on the Abstractness of Authorization in the Law of Agency

德国法基于商事实践中的“经理人”制度,以概念法学的方法构造了代理权授予之无因性理论。在民事一般代理领域,授权是基础关系的具体履行,二者在存续、效力和权限方面紧密关联,授权行为之无因性所意图解决之善意第三人保护问题可借助表见理论。《民法总则》未采该理论,授权行为属于委托合同之履行,但可进一步明确可有效授权予限制行为能力人。该理论内涵之一“代理权授予之独立性”却在商事代理领域取得了成功,包括公司代理机关、经理人,然并无必要将选任代理人的行为解释为单方行为而非合同。我国法可借鉴这一理论:确立公司代表权之概括性、不可限制性;第三人简单知情代表权违反内部限制的并不当然等于“恶意”。

In German civil law,the theory of“abstractness of an authorization”is formulated based on Prokura which was born in the context of commercial practice.In the field of the general representation in civil law,an authorization is the execution of the contract of mandate and both of them are closely related with each other in terms of existence,effectiveness and extent.The protection of the bona fide third party which is intended to be solved by the abstractness of authorization can be turned to the theory of apparent authority.The theory of apparent authority could replace the abstractness of authorization to protect the bona fide third party s interests.The General Rules of the Civil Law of China does not adopt this theory as it supports that an authorization is the execution of a contract of mandate.Moreover,it is possible to further clarify that an authorization could also be addressed to a person with limited capacity.However,as one of its connotations,the independence of the authority from its basic relations has succeeded in the field of commercial representation including the agency of the company and Prokurist.However,it is not necessary to explain the act of appointing a commercial agent as a unilateral act rather than a contract.Regarding the legal representative s power,it is argued that Chinese Corporate Law should learn from this theory to ensure that the legal representative s power is general and cannot be limited.Therefore,the third party would not be certainly deemed as“malicious”when he or she simply knows that the legal representative s act violates the internal restrictions of the company.