违法代理责任论

Theory of Illegal Agency Liability

民法典第167条明定了违法代理的责任承担问题,但是关于该制度的制度定位及适用领域,学理上存在争议,实务中不乏模糊处理,规范间体系联动复杂,有必要借助教义学原理整理其规范内涵。违法代理的连带责任承担应主要适用于多数人侵权场合下的共同侵权行为、教唆帮助侵权行为与无意思联络的聚合因果关系的侵权行为场合;对于缔约过失责任、违约责任、返还责任等责任场合因该条存在着违背债的相对性原理的风险,应当排除其适用。如果相对人对于违法代理系明知的,则可因违法行为致害不受法律保护原理以及过失相抵规则免除本人与相对人的连带责任。

Article 167 of the Civil Code clearly defines the liability of illegal agents. However, there are disputes on the system positioning and application fields of the system, and there are many fuzzy treatments in practice. The linkage between norms is complex, so it is necessary to sort out its normative connotation with the help of dogmatic principles. The joint and several liability of illegal agents should be mainly applied to the joint tort in the case of majority infringement, the tort of aiding and abetting infringement and the tort of aggregate causality of meaningless contact;For liability occasions such as contracting fault liability, breach of contract liability and return liability, the application of this article should be excluded because of the risk of violating the principle of relativity of debts. If the counterpart is aware of the illegal agency, the principle that the harm caused by the illegal act is not protected by law and the rule of negligence offset can exempt him from joint liability with the counterpart.