| |
Since China introduced foreign trade agency, limited to the institutional, legal regulations, and some other aspects of constraints, and foreign trade practice to use the system often Hin chaos, and its function has not been fully exploited for a long time. Along with the implementation of contract law and the right to full liberalization of foreign trade, which means foreign trade business in China will undoubtedly progressive norms and universal. But at the same time, there are also areas of foreign trade agency had not previously encountered new problems, it is worth careful study of judicial practice sector, particularly in such cases the law applicable.
First, the status of China's foreign trade agency legislative and judicial practice puzzles
Our current foreign trade agency relationship primarily by the "General Rules of the Civil Law", the "Contract Law," "Foreign Trade Law" (July 1, 2004 implementation) and the original MOFTEC August 29, 1991 published "on foreign trade agent system Interim Provisions" (hereinafter referred to as the "Interim Provisions") adjustment. Of these, the "General Rules of the Civil Law" provides traditional direct acting system, but because of the existence of many such agents inconvenience, [1] in the practice of China's foreign trade is not much ;< Interim Provisions "on foreign trade agency produced a more detailed provisions there are a lot of long-term practice of foreign trade enterprises in their own name for the client agent for the import and export business form the basis, in the "Contract Law" came into effect before played an important role But also its shortcomings : on the one hand, the "Interim Provisions" of the powers and responsibilities between the client and trustee relations provisions Jiqingjizhong, on the other hand, as departmental rules and the "General Rules of the Civil Law" Acting on the provisions inconsistent directly to the legal effect be affected, and therefore only justice and arbitral awards as a reference; "contract law" to the foreign trade agency, inadequate legislation and practice problems, the integration of Liangdafaxi Acting system, and commissioned in Hengjihetong contracts (primarily of paragraph 402, 403) two chapters further enriched agent types, thus China's foreign trade development agency has laid a solid legal foundation, the judicial practice is a more explicit basis; and the 2004 implementation of the "Foreign Trade Law" is a foreign trade agency as a legitimate foreign trade existence, and will expand the scope of foreign trade operators engaged in foreign trade operation activities according to law to individuals, business entities in the foreign trade monopoly, and foreign trade rights threshold was completely withdrawn. [2]
There is no doubt that the legislation indicates that China's foreign trade agency system is gradually moving norms and sound, foreign trade agency practice may not be the plight of the considerable mitigation, protection of the interests of the main transactions were more comprehensive and detailed consideration, the positive without saying. However, given the legislative agent for the sub-types, when foreign trade agency dispute, the judge must also consider factors more complex than ever. Because in the vast majority of cases, the only person on the basis of inter-agency agreements may not be sufficient to judge the agent types, and different agents have different legal basis and legal consequences Therefore judge found in the nature of the foreign trade agency to be very careful. But precisely on this point, because the parties did not conduct norms, the reality of the complexity, and my agent legislation itself wrong, and many other factors, makes judges easily produce confusion, many cases, even the parties themselves do not understand their behaviour within which agents, and on a third person, The central problem is identified with his party signed the contract or whether I agents.
A company such as clothing production and trade companies with B Acting exports, B Company will be sold to foreign clothing companies C, if B to a and C in the name of the signing of the sales contracts, no doubt for direct representation, but in their own name B contracts, a, B will be the relationship between several possibilities : OK Discipline relations, "Contract Law," No. 402 stipulates Acting relations and the "Contract Law," No. 403 stipulates Acting relations, the two sides in disputes between a and B and each of the cases, judges in both qualitative relationship between the often very difficult and it would be difficult to determine who the third person C rights and obligations. Such confusion and the judge will not and has led to the unification of the administration of justice flourished and even many judges in dealing with trade disputes, due to traditional agency thinking in contract law enacted in 1956 has never been applied to paragraph 403 of the Act relating to the right to choose and the right to intervene. Thus, foreign trade agency cases requiring the application of the law will be respected.
Second, the current foreign trade agency explains and interprets legislation
Acting on a large number of China's existing legislation Liangdaifaji Acting system, and therefore, it is necessary to correctly understand and apply the existing foreign trade agent system, it is necessary first to Liangdaifaxi Acting system simple inspection.
(1) Acting types Liangdaifaji
Whether in civil law or common law systems, the commercial practice Acting variety, and in constant evolution, the theory is difficult to define its type to 11. And we have to admit that, in acting in this field, legal theory and the existence of inevitable conflict between commercial reality, but in relation to civil law and common law is the existence of some conflict areas to be small. [3] but because of this, the Acting national research system has always been one of the focal points, and scholars on the basis of certain criteria, to make a rough classification system agents.
Civil law based on their own behalf or on behalf of agents in my contract with the third criterion will be the Acting District into direct and indirect Acting Acting; And the common law is not the existence of a direct and indirect agents acting this fundamental division on the basis of who signed the contract with a third person responsible for the standard, the Acting divided into three : 1. I publicly names agent, agent contract with a third person both open my presence, but also open their names ;2. Acting names I do not open, I open the existence of agents, but not disclose their names ;3. I do not open the identity of the agent that the agent does not open I exist, and on its own behalf contract. [4] which I openly name of the Acting Acting also known as Hin, agents who signed contracts with three of the effectiveness of direct and in I; I will not name publicly undisclosed Acting as agent for the agent I still contracts with a third person; In the circumstances I did not disclose agents, agents of the contract should bear legal responsibility, but I still have not been disclosed in the contract directly to the third person and the right to request the exercise, and I found three people in, on the enjoyment of the right to choose, or I can ask agents to contractual obligations. [5]
Clearly, the legal effect, Hin-agent and agent representing civil law undisclosed direct agent. I do not open the identity of the agent is acting both with the civil law tradition indirectly unanimously differentiated : agent contract with a third person is in their own name, I did disclose that a third person can request that the agents assume responsibility for the contract, which is both common ground; The distinction between the two is that I do not open the identity of the agent, I have the right to intervene, directly to the right of a third person that right Correspondingly, three people have the right to choose, which is not found in the disclosure I can exercise choice through direct I stand for right and indirect agents, and a third person I link in the establishment of the continuity of the two contracts, the agent contracts with three human and I with the contract between the agent based on the principle of the right to request and the property was transferred to the contract, with three people I can not direct legal relationship, unless a special arrangement, such as its agents to a third person the right to request transfers to himself. Of course, with the development of the age, such traditional indirect agents have legal effect in easing civil law and the provisions are not fully consistent States.
(2) China's foreign trade agency's interpretation of legislation
Under China's current foreign trade agency adjustment relations laws, regulations, the "General Rules of the Civil Law" provides direct Acting easily understood, the "Foreign Trade Law" is not acting on the rules specified, and that the "Interim Provisions" not lapse, but in the "Contract Law" came into effect after the reference value has been greatly diminished. It really deserves a careful reading, primarily related to the "Contract Law", which, in a contract Hangjigetong and chapter section 402, article 403, paragraph Liangdaifaji Acting on the system is on the "General Rules of the Civil Law" is limited to direct agents breakthrough significance is particularly important. Correct understanding of these provisions is the correct choice in the case of foreign trade agent for the applicable law.
1, the "Contract Law" section 402 of [6] From the above presentation shows that the provision of the common law from the undisclosed agent system. Common to both : trustee (equivalent to agents), although in their own right to contract with a third person, but under certain conditions, the contract was eventually bound clients directly (equivalent to I) and a third person. However in both called "conditions" are different : First of all, my contract law No. 402 stipulates that "the third person in the formation of contracts with the clients know trustee relations between agents" that the Trustee (agent) clients do not have to show (I), where three people know it, and undisclosed agent requires agents to a third person acts to demonstrate its agents, namely, the existence of open I, as in the contract, the words "on behalf of himself," words to English law, for example, even if the agent in the formation of contracts with descriptive language that they are agents of a third person, through its agent relations know that the existence of The agents still be personally responsible for the contract; Secondly, my contract law No. 402 requires three people know "between the trustees and the principal agent relationship," the letter from the analysis, which should be understood not only as a third person contracting to know trustees committed acts of agents, and to know who is the specific agent (I) and undisclosed agent system is only required when the contracting agent acts as agent to demonstrate its acts were not disclosed specific agents. Evidently, my contract law does not apply the provisions of article 402 of the undisclosed agent of the common law system, but have their own characteristics. Some scholars believe that the article provides that "the expansion of the" General Rules of the Civil Law "as to the scope of the civil law tradition directly Acting : : thus virtually abandoned the civil law 'standard name', and to adopt a common-law 'standard of accountability'. This provides more flexible, more operational, certain well coordinated with the commercial realities. "[7]
..................................................
|
|
|
|
|
|
|
|
