Civil activities pursue autonomy of will, and individuals deal with social relations according to their own free will. The emergence and development of agency system is the extension of autonomy of will, which has the historical inevitability of economic and social development. With the faster and faster economic development, the larger and larger scale, the wider and wider scope of transactions, coupled with the refinement of social division of labor, the informatization of market transactions and other needs, civil subjects are increasingly unable to engage in civil legal acts in person, so the agency system came into being and has become an important part of social and economic life. The development of agency system is closely related to the separation of owners and managers, and the differentiation of property ownership and property management in modern and contemporary enterprises. The emergence and development of agency system is of great significance to the expansion of civil subject autonomy. In order to protect the legitimate rights and interests of the principal and the third party and the stability of civil legal acts, the law should regulate the acts of agency.

In terms of the legislative evolution of the civil law system, the French civil code clearly stipulates the appointment contract as one of the various methods of obtaining property, and completes the legislative prototype of the agency system. With the further development of commodity economy, the German civil code, which pays more attention to formal logic, clearly includes the agency system in legal acts, establishes a new legislative model of the agency system, and is followed by many civil law countries and regions in the future. As an important part of the general provisions of civil law, the agency system is often confirmed in the form of a special chapter in modern countries or regions.

Before the formulation of the general principles of civil law, the provisions on agency in Chinese law were mainly concentrated in the general principles of civil law and the contract law. The general principles of civil law specifically stipulates a section of "agency" in Chapter IV "civil legal acts and agency", with a total of 8 articles; There are three clauses in Chapter III "contract effectiveness" of the contract law involving agency issues, and chapter XXI specifically stipulates "entrustment contract". When the general provisions of the civil law was formulated, it was further improved and supplemented on the basis of the above provisions, and a separate chapter "agency" was specifically stipulated. The content of the civil code will remain basically unchanged this time. The thought map of the chapter "agency" in the civil code is as follows:

I. The concept and connotation of agency

i.Definition of agent

As for agency, it comes from the German civil law. The so-called stellvertretung (representation), who expresses his will to a third person in the name of another person, or receives the expression of his will from a third person for another person, so that the effect directly belongs to the act of the other person, that is, the agent performs a civil legal act in the name of the principal, and the legal effect also directly belongs to the principal. The first paragraph of article 161 of the Civil Code stipulates that "a civil subject may perform a civil legal act through an agent".

ii.Agency theory

As for the attribution of agency behavior, there is a debate in theory: there is the theory of personal behavior, which was founded by Savigny. Its content briefly states that the meaning of implementing legal behavior is formed by myself, and the agent is only equivalent to my "organ", expressing my will to the outside world. Therefore, the meaning expressed by agency behavior is my own meaning. Another representative said that, initiated by brinz, he believed that the expression of intention in the act of agency was not formed by the person himself, and what was made to a third person was the expression of intention of the agent, but the resulting legal effect was borne by the person himself. This theory has now become a general theory in Germany. In addition, the theory of joint act, advocated by mithes, attempts to compromise the two, taking one end of the theory of personal act and the theory of representative: between the person and the agent, the authorized act and the agent act are not separated from each other, but common elements.

At present, the general theory or the representative theory is adopted, emphasizing that the agency behavior is the behavior of the agent, but its effect directly belongs to itself according to the agency system. From the perspective of legal relationship, agency is also a kind of legal relationship. In the agency relationship, the principal is also called himself, the person who acts on behalf of others is called the agent, and the person who performs civil legal acts with the agent is called the opposite person.

iii. Functions of agent

The function of agent is mainly reflected in the following two aspects: first, expansion function. Some agents have limited time and energy, so many things are difficult to do in person; Some principals have difficulties in engaging in civil activities due to their own knowledge and experience. The agency system enables civil subjects to realize their own interests through the acts of agents, so as to participate in civil activities more widely and deeply. In this sense, the agency system expands the space of civil subject autonomy. Second, auxiliary functions. Generally speaking, only with full civil capacity can civil legal acts be carried out independently. For people without and with limited civil capacity, if they want to participate in civil activities and realize their own interests, they must make up for their lack of capacity through the agency system and legal agents.

iv. Scope of agency

1. Allow the behavior of applicable agents

The scope of application of agency principle is limited to civil legal acts. In addition to civil legal acts, there are also a large number of other situations where agency can be applied in practice: quasi civil legal acts, quasi legal acts and non civil legal acts. Quasi civil legal acts, such as invitation to offer, withdrawal of offer and withdrawal of acceptance, can also be represented. Aiming at legal acts, such as reminder, notice of defects of things can be applied by analogy. Common non legal acts mainly include: application behavior, that is, the behavior of requesting relevant state departments to grant certain qualifications or rights; Declaration behavior, the behavior of fulfilling legal obligations, such as declaration and tax payment behavior; Litigation behavior, that is, acting for the parties in the litigation to carry out various litigation behaviors. These are often lawyers engaged in non litigation and litigation business. When non legal acts apply to agency, because there is no legal act, of course, it cannot produce the consequences of civil legal acts, but should produce corresponding effects according to the provisions of the laws and administrative regulations they follow.

2. Prohibition of acts of applicable agents

Not all civil legal acts are allowed to be represented. According to the second paragraph of article 161 of the civil code, the following three types of civil legal acts cannot be represented: first, civil legal acts that should be performed by themselves according to the law, such as marriage registration; Second, according to the agreement of the parties, the civil legal act should be carried out by themselves; Third, acts that cannot be represented according to the nature of legal acts, mainly personal identity acts or debt acts, such as adopting children, making wills, performing contracts, etc.

II. Extension and category of agency

i.Legal agency and voluntary agency

According to the different basis of agency, agency can be divided into legal agency and voluntary agency. The provisions of Article 163 of the civil code correspond to this classification: legal agency refers to the agency that exercises the agency power in accordance with the provisions of the law, and the agency power of intentional agency comes from the will of the parties.

1. "Designated agent" is included in "legal agent"

In the general principles of the civil law, there is also a designated agent, that is, an agent who exercises the power of agency according to the designation of the people's court or a designated unit. In the process of legislation, there is a great controversy about whether the designated agency is a separate type of agency. After research, it is believed that the classification of legal agent and designated agent has certain theoretical significance. After all, they are different in the determination of agents. However, the source of the agency power of both is the legal provisions. The agents obtain the agency power and exercise the agency duties according to the legal provisions, which has little difference in law and affairs. Therefore, the civil code cancels the type of "designated agency" stipulated in the general principles of the civil law and brings it into the scope of legal agency to regulate.

The agency right of legal agent comes from the direct provisions of the law, without the authorization of the principal. Similarly, the agency right of the agent can be cancelled only if it complies with the provisions of the law. The types of legal representatives mainly include guardians, property trustees of missing persons, and liquidation groups.

2. "Job agency" is included in "entrusted agency".

(1) The appellation of "intentional agency" or "entrusted agency"

The power of agency comes from the will of the parties. If it is in writing, the name of the agent, the agency matters, authority and period shall be stated. Note that the term in the civil code is "principal-agent". In this regard, some scholars believe that the title is inaccurate: first, the basic relationship of intentional agency is not necessarily principal. In addition to the principal-agent contract, employment and labor contracts are also common, and may even have only a simple authorization without a basic relationship; Second, even if the underlying relationship is a contract of entrustment, the discretionary agency right does not come from entrustment. Entrustment belongs to contract, which is only the basic legal relationship of agency relationship. What makes the agent obtain the agency right is the act of granting the agency right as a unilateral act; Third, the entrustment relationship may not be accompanied by agency. The parties may only have a trust contract without agency relationship, and the trustee either does not need to complete the entrusted affairs with the help of legal acts, or has no right to perform legal acts in the name of the principal. It can be seen that there is no inevitable connection between "entrustment" and "agency".

(2) The principal-agent originates from authorization and can be made by one party without being affected by the underlying relationship.

Because of this, there has always been a theoretical problem in the principal-agent: whether to recognize the non causa of agency behavior. Because the non causa theory itself is too abstract and our people are not easy to accept the non causa of authorization behavior, the general provisions of the civil law does not stipulate the non causa principle of authorization behavior. However, it is generally said in the academic circles that the generation of agency right is based on the act of entrustment and authorization, and the authorization of agency right is made by the person himself with unilateral intention, and its effect is not affected by the invalidity or revocation of the basic legal relationship between the agent and himself (mainly the principal-agent contract, but not limited to this, such as partnership, etc.). Similarly, after the generation of agency power, agency power also has independence. Even if the act of authorization is invalid, it does not necessarily affect the effectiveness of the act of agency. For this, the legal rules of unauthorized agency or apparent agency should be applied.

(3) "Civil Code" will also come from the authorized job agency into the principal-agent.

Under the legal system of our country, appropriately expanding the scope of intentional agency is not only in line with the logical completeness, but also conducive to combining the needs of practice, but also help the public reasonably understand the source of agency power in various agency acts. The power of intentional agency, in essence, should be the power of agency based on one's own will. This meaning can be reflected not only in my authorization, but also in my appointment of the agent's position according to the employment, entrustment and other contractual relations between myself and the agent. Article 170 of the civil code regards duty agency as an important content under the principal-agent, and a separate article stipulates it, which not only reflects the nature of duty agency, but also highlights the importance of duty agency itself. In job agency, the identity of the agent is the staff of a legal person or an organization without legal personality; The behavior of the agent must be within the scope of its authority; An agent performs a civil legal act in the name of a legal person or an organization without legal personality. As for ultra vires agency, the legal rules of unauthorized agency or apparent agency should be applied, just like the ultra vires agency mentioned above. It will be discussed later.

ii. Separate agency and joint agency

According to the standard of whether one person or several persons exercise the power of agency, agency can be divided into separate agency and joint agency. If the agency right is enjoyed by a single agent alone, it is called the independent agency right; If the agency right is shared by several people, it is called joint agency right. The agency rules are based on the single agency right, and the joint agency right can be legal or determined. Separate agency and joint agency, legal agency and intentional agency are just different classification standards, and there is no one-to-one correspondence.

Article 166 of the Civil Code stipulates: "if several persons are agents of the same agency matter, they shall jointly exercise the agency power, unless otherwise agreed by the parties." As for the specific way of jointly exercising the agency right, if there is an agreement between the agent and the principal, it shall be carried out in accordance with the agreement. If there is no agreement, several agents should be allowed to divide the work by agreement. In case of dispute, it can be carried out by negotiating a majority decision. The division of labor and negotiation of all agents should be reported to the principal in time.

iii. Origin agency and re agency

According to the right of agency, it can be divided into this agency and re agency. The provisions of Article 169 of the civil code correspond to this classification. This agent or the original agent refers to the agent established by the principal directly selecting the agent. Re agency refers to the agent who selects others as his principal in his own name to perform all or part of the acts within the authority of agency. In the complex agency relationship, there are two agents: the original agent and the complex agent, and there are two levels of agents: "the original agent's agent to the principal" and "the complex agent's agent to the principal".

Complex agent needs: this agent exists; Obtain the prior consent of the principal or the subsequent ratification of the principal; The agent appoints a new agent for the principal with his own independent intention; The re agency right should be within the scope of the original agency right. Compound agent is mainly applicable to principal-agent, but it can also be applied to legal agent, that is, both legal agent and entrusted agent can choose compound agent for the principal. Here we need to explain the reason why the legal agent is endowed with the right of re agency: the legal agent has a wide range of agency rights and cannot do everything personally; Once the legal agent is unable to implement the agency act in person and cannot delegate, it will be detrimental to the realization of the principal's interests.

iv. Direct agency and indirect agency (explicit agency and anonymous agency)

1. Theoretical classification and legislation

According to the name of the agent, the legal act can be divided into direct agency (explicit agency) and indirect agency (anonymous agency). In the traditional continental law system, there are direct agency and indirect agency, while in the common law system, there are explicit agency and anonymous agency. An agent who performs legal acts in the name of the principal is called direct agency, and an agent who performs legal acts in his own name for the benefit of others is called indirect agency. In indirect agency, the effect of the act occurs directly between the agent and the opposite party, and then the agent transfers the rights and obligations obtained to the principal, so indirect agency will not directly establish the rights and obligations relationship between the principal and the opposite party. In fact, indirect agency is not pure agency, which will not produce the tripartite relationship of agency, and the legal structure of the two is far from each other. The agency stipulated by civil law countries and regions generally only refers to direct agency, such as the civil codes of Germany, France, Italy, Russia and Japan.

2. Legislative practice and changes in China

The general principles of civil law only stipulates direct agency, not indirect agency. On the basis of China's foreign trade agency, the contract law draws lessons from the Convention on Agency for the international sale of goods and incorporates the characteristics of the two legal systems, and stipulates indirect agency in articles 402 and 403. During the formulation of the general provisions of the civil law, some opinions suggested that only direct agency should be stipulated in the general provisions of the civil law, and indirect agency should be stipulated in the contract law; Some opinions suggest that both direct agency and indirect agency should be stipulated in the general provisions of civil law; Some opinions suggest that the indirect agency stipulated in article 403 of the contract law should also be clearly stipulated in the general provisions of the civil law.

In the first three deliberative drafts of the draft general provisions of the civil law, both direct agency and indirect agency are stipulated. During the deliberation of the general provisions of the civil law at the fifth session of the 12th National People's Congress, some opinions pointed out that indirect agency is not necessary to be stipulated in the general provisions, but in the contract law. Therefore, the provisions of indirect agency have been deleted in the general principles of civil law finally adopted. The civil code has not changed this practice, and the indirect agency is stipulated in the chapter of "entrustment contract" in the contract.