揭开机关理论的面纱:区分“代表”与“代理”以及“机关”与“雇员”之无益论

Unveiling the Theory of Organ:Uselessness of the Distinction Between Representation and Representation by Organ and the Distinction Between Organ and Employee

机关理论随实在说进入法学殿堂,后被私法学者用以解释法人机构之法律地位,其理论标志是严格区分"代理"和"代表"以及区别法人因机关侵权行为而承担的直接责任和雇主责任。认为我国采实在说中的组织体说属误读,米绍的学说实乃"技术实在说",且法人本质的学说争论只有学术史意义,法人本质的学说与法人具体制度构建无关。制度运作上,代表就是代理机制而非准用代理制,法人因机关侵权而承担的责任相比雇主责任并无特色。中国法没必要坚守实在说和机关理论。

The theory of organ was created in the context of the theory of reality.Then the scholars of private law has interpreted the status of a juridical person’s organizations,with the theory of organ.According to this theory,on the one hand,it’s necessary to make a distinction between representation by organ and representation;on the other hand,the distinction between the employer’s liability and the juridical person’s liability occurred by its organ’s tort should be established.It’s a misunderstanding to hold that the theory of reality is adopted by the Chinese law.In fact,the theory invented by Michoud should be named by"the theory of technical reality".All of debates about a juridical person’s nature make sense only from the point of view of academic history,and the construction of a juridical person’s regime doesn’t depend on those theories about a juridical person’s nature,so that the Chinese law shouldn’t insist on the theory of reality or the theory of organ.The representation by organ is a type of representation and these is no difference between the employer’s liability and the juridical person’s liability occurred by its organ’s tort.