表见代理的司法运用状况及问题分析

Agency by Estoppel of Judicial Application Condition and Problem Analysis

表见代理作为一项典型的民商法制度,有着平衡买卖双方与第三方利益的功能,表见代理的构成与适用长期以来也是司法实践中引发争议的难点,本文以现行法为基础,最新的法律法规、司法解释为背景,以裁判文书网为平台,查询大量相关案例,并从案例中找寻规律,同时还考察外国有关制度与实践经验,立足于我国国情,以求得到最合理的解释。文章分为三部分,分别从表见代理纠纷的案件梳理、构成要件的整理归纳及笔者可归责性等方面对此制度进行了剖析。

As a typical civil and commercial law system of ostensible agency, balancing the interests of the buyers and sellers with a third party, as well as the composition of ostensible agency for a long time, it is also the difficult point in controversy in the judicial practice, this article on the basis of commenting, the latest laws and regulations, judicial interpretations as the background, the network platform to the written judgment, query a large number of related cases, and looking for regular, from case also inspect foreign related system and practice experience, based on China's national conditions, in order to get the most reasonable explanation. This paper is divided into three parts, which are analyzed from the aspects of the cases, the summarization of the constitutive elements and the accountability.