无权代理人对相对人的法律责任

The Legal Liability of an Unauthorized Agent to His Counterparty

无权代理和表见代理中相对人善意的认定标准相同,均为不知且未因过失而不知行为人无代理权。善意相对人有权选择请求无权代理人履行债务或者赔偿履行利益,但无权代理人不知其无权代理且无过错时,可仅承担信赖利益的赔偿。恶意相对人有权请求无权代理人赔偿信赖利益,具体分担比例要考虑相对人和无权代理人的过错而非仅仅是恶意,同时结合受害人故意和过错相抵的规则;相对人明知行为人无代理权,不能排除无权代理人的责任。无论是善意相对人行使撤销权,还是构成表见代理,都不能当然排除无权代理人对善意相对人的责任。

The same rule applies to the identification of a good-faith counterparty in unauthorized agency in a narrow sense and to that in apparent agency,i.e.,the counterparty is unaware of the absence of authorization,and such unawareness is not out of negligence.Since the rule on constitutive elements of apparent agency is more stringent,such a path of interpretation will not result in a complete overlap in the scope of application of the two rules.In principle,a good-faith counterparty has the right to choose to request the unauthorized agent to perform the debt or pay compensation,of which the amount should be expectation interests regardless of the subjective condition of the unauthorized agent.However,the interpretation that the scope of liability for damages assumed by an unauthorized agent is expectation interests does not prevent a good-faith counterparty from choosing to claim compensation for reliance interests from the unauthorized agent based on specific considerations.In exceptional cases,provided that an unauthorized agent is unaware of the absence of authorization and such unawareness is not out of negligence,a teleological restriction can be imposed on the first half of Article 174 Paragraph 3 of the Civil Code for the sake of balance of interests and systemic coordination,so that a good-faith counterparty cannot request the faultless unauthorized agent to perform the debt,but still has the right to claim damages,except that the scope of compensation is limited to reliance interests,which in no case may exceed the benefit that the counterparty could have obtained at the time of the principal’s ratification or in the authorized agency.This paragraph can be interpreted as building a statutory rule of risk sharing between the faultless unauthorized agent and the good-faith counterparty.A bad-faith counterparty may request the unauthorized agent to compensate reliance interests.In such a case,it is necessary to determine the degree of fault of both parties by considering the good or bad faith of the counterparty and the unauthorized agent and the reasonable expectation of the principal’s ratification and other factors and to combine the rules of the victim’s intent and comparative faults,so as to determine the specific proportion of liability.The counterparty’s awareness of the absence of authorization should not exclude the liability of the unauthorized agent.Otherwise,it will lead to an imbalance of interests between the two parties.The exercise by a good-faith counterparty of his revocation power does not necessarily exclude the liability of the unauthorized agent to the counterparty.In the case of apparent agency,the good-faith counterparty can either claim the validity of the agency in accordance with Article 172 of the Civil Code or choose to apply Article 171 to exercise the right of revocation and claim liability against the unauthorized agent.Such an interpretation neither results in the counterparty receiving protection beyond its reliance nor increases the risk of speculation by the counterparty.