Judicial interpretation of article 17 1 of the civil code

If the actor has no power of agency, exceeds his power of agency or terminates his power of agency, he will still carry out the agency act, and it will have no effect on the principal without ratification by the principal. The counterpart may urge the principal to ratify it within 30 days from the date of receiving the notice. If the trustor fails to declare it, it shall be deemed as refusal to ratify it. Before the act committed by the actor is ratified, the bona fide counterpart has the right to revoke it. Revocation shall be made by notice.

The Civil Code came into effect on 202 1 1, which is a legal weapon that citizens can use to safeguard their rights and interests in their daily lives. So, what is Article 17 1 of the Civil Code about? What is the interpretation of this legal provision? Let's have a look!

I article 17 1 of the civil code

Article 171 Where an actor has no agency, exceeds the agency or remains an agent after the agency is terminated, it shall not be effective to the principal without ratification by the principal.

The counterpart may urge the principal to ratify it within 30 days from the date of receiving the notice. If the trustor fails to declare it, it shall be deemed as refusal to ratify it. Before the act committed by the actor is ratified, the bona fide counterpart has the right to revoke it. Revocation shall be made by notice.

If the act committed by the actor is not ratified, the bona fide counterpart has the right to demand the actor to perform the debt or demand the actor to compensate for the damage he has suffered. However, the scope of compensation shall not exceed the benefits that the counterpart can obtain when the principal ratifies.

If the counterpart knows or should know that the actor has no right to act as an agent, the counterpart and the actor shall bear the responsibility according to their respective faults.

Second, the interpretation of the law.

1, composition of unauthorized agency

The composition of unauthorized agency is based on agency, which requires the unauthorized agent (actor) to act as the agent in the name of the principal. The difference between unauthorized agency and authorized agency is only whether the actor has the right of agency, and other elements are exactly the same. At the same time, this is also the biggest difference between unauthorized agency and unauthorized disposition. The premise of unauthorized disposition is that the actor who has no right to dispose makes a disposition in his own name, while the premise of unauthorized agency is that the actor who has no right to represent makes a legal act in the name of the principal.

The composition of unauthorized agency also includes that the actor has no agency right. Specifically, the actor has the following situations: first, the actor has no agency right from the beginning, including the principal's failure to make an agency authorization, the agency authorization itself is invalid or revoked retroactively, and the basic relationship between the principal and the actor is invalid or revoked retroactively, which leads to the invalidation of the agency authorization. Second, the actor has the right of agency but exceeds the right of agency, that is, the actor has the right of agency but exceeds the right of agency. Third, the actor continues to act as an agent after the termination of the agency right, that is, the actor had the agency right before, but the agency right was terminated according to Article 173 of this Law, which is not retroactive, and then the actor still acts as an agent.

2. right of ratification of the Principal.

(A) the effectiveness of agency behavior for the principal defects

Article 5 of the law establishes the principle of voluntariness or autonomy. According to this principle, the expression of the principal's will includes the effective meaning of the agent's own behavior. According to this meaning, the effectiveness of the agent's agency behavior based on the power of attorney belongs to the principal, which expands the possibility of the principal's autonomy. However, if the agent has no agency right, it means that the principal has no intention to bear the consequences of the agency behavior, so the consequences of the agency behavior cannot be directly borne by the principal. Therefore, in principle, the principal decides whether to bear the consequences of the agency behavior, and the principal enjoys right of ratification accordingly. Paragraph 1 of this article defines this general rule.

However, this rule should be limited purposefully in the following cases:

First of all, unauthorized agency is a unilateral legal act. In this case, in principle, the agency behavior is invalid for the principal, and the principal does not bear the consequences of the agency behavior and does not enjoy the right of ratification, because the private party's expression of will has no influence on the validity of the unilateral legal act. If the validity of a unilateral legal act depends entirely on the ratification of the principal and the counterpart has no right to revoke it, it may lead to excessive passive uncertainty of the counterpart. However, even in the case of unilateral legal acts, the principal can still enjoy the right of ratification, but there are exceptions, including: the counterpart has not raised any objection to the power of agency proposed by the unauthorized agent; The counterpart agrees to the agency behavior without agency right; Unauthorized agency behavior is a negative agency for the expression of will. The reason is that in the first two cases, people are willing to take risks, so they don't need special protection; In the last case, the expression of will was made by the opposite party. Before the expression of will arrived, the opposite party has the right to withdraw it according to the provisions of Article 14 1 of this Law, so other special protection is not needed.

Second, if the agency behavior of the unauthorized agent constitutes negotiorum gestio, that is, negotiorum gestio is a legal act made by the manager in the name of the managed person. As the legal consequence of negotiorum gestio, the managed person (the principal) should bear the obligation of ratification, and the unauthorized agent as the manager can request the principal to bear the consequences of the agency behavior.

(2) Express approval.

The principal has the right to bear the legal consequences of unauthorized agency behavior through ratification. Ratification is also a kind of expression of will, so the general provisions of this law on expression of will apply.

Ratification also requires the principal to have corresponding capabilities. If the principal is a person with limited capacity, it needs to be ratified by the legal representative of the agent in principle. According to the provisions of article 145 1 of this law, a person with limited capacity enjoys right of ratification by himself, but at this time, we should not see whether he can understand right of ratification's exercise itself, but whether the unauthorized agency behavior is purely beneficial to him or whether it is suitable for his age, intelligence and mental health. Otherwise, the ratification of a person with limited capacity is invalid as a unilateral legal act.

Ratification is an expression of the other party's meaning. Ratification can be carried out on both unauthorized agents and private parties. However, if the counterpart can still express the intention of the principal to the agent after being urged, it may not be conducive to protecting the interests of the counterpart. Therefore, at this time, we should consider only approving the counterpart. At the same time, according to the provisions of Article 137 of this Law, the conversational intention becomes effective when the counterpart knows its contents, and the non-conversational intention becomes effective when it reaches the counterpart, which can be revoked according to the provisions of Article 14 1 of this Law.

According to article 140 of this law, the expression of approval can be express or implied. The expression of ratification will also have defects in effectiveness. If the ratification is made due to gross misunderstanding, obviously unfair, fraud by the endorsee, coercion by the endorsee or the unauthorized agent, the endorsee naturally enjoys the right of cancellation. In order to protect the interests of the counterpart, if the principal ratifies on the basis of the fraud of the unauthorized agent, the provisions of Article 149 of this Law on fraud of the third party shall be applied, and it is considered that the principal can enjoy the cancellation right only if the counterpart knows or should know the fraud of the unauthorized agent.

Whether the principal can ratify part of the agency behavior can be considered to distinguish the following situations:

First, if the unauthorized agency behavior can be divided, the principal can ratify one or more of them, unless the different parts are interconnected to produce preferential prices for the principal;

Second, the unauthorized agency behavior is inseparable, and it cannot be partially ratified in principle unless the counterpart agrees;

Third, whether the principal ratifies all or part of the agency behavior must be a general ratification, not just favorable content, but unfavorable content.

(3) Time limit for approval

The client enjoys right of ratification, but the counterpart is not sure whether and when to ratify it. The long-term existence of this state is not conducive to the counterpart, so that the counterpart may lose good business opportunities, and the principal can speculate at the cost of the counterpart. Therefore, this law limits the time limit for ratification by the client.

When the counterpart urges, this article stipulates that "the counterpart may urge the principal to ratify it within one month from the date of receiving the notice. If the principal fails to declare it, it shall be deemed as refusal to ratify it. " There are different opinions on whether the counterpart has the right to determine the ratification period beyond one month at the time of demand. Considering the balance of interests, if there is an agreement between the client and the counterpart or there are special provisions in the law, there is no reason to exclude the autonomy of the parties; If the counterpart determines the ratification period by himself at the time of demand, the statutory one-month period should be the shortest period to avoid damaging the interests of the principal.

At the same time, this article does not stipulate the time limit for ratification without the other party's reminder. If the client has an agreement with the counterpart, the natural agreement takes precedence; If there is no explicit agreement or special provision, the time limit for ratification without notice is a reasonable time limit from the date when the principal knows or should know the unauthorized agency behavior, which is determined by the judge in combination with the trading habits, the nature of the transaction, the target amount and other factors.

Effectiveness of ratification

The second half of article 1 of this article stipulates that "if the principal does not ratify it, it will not be effective for the principal", which means that if the principal ratifies it, the agency behavior will be effective for the principal, and the principal will bear the consequences of the agency behavior. However, ratification is an ex post facto consent to specific unauthorized agency behavior, and cannot be regarded as granting future agency rights. Ratification has retroactivity, which is effective for the principal's life when the agency act is implemented. However, this traceability cannot infringe upon the interests of third parties. For example, Party B has no right to sell Party A's computer to Party C on behalf of Party A, and then Party A and Party D signed a sales contract without knowing it. However, because the previous contract price was better, Party A ratified it. At this point, retroactively violated the interests of Party D. ..

After the principal ratifies the unauthorized agent, if the principal's behavior exceeds the limit of the basic relationship, the principal has the right to request the unauthorized agent to compensate according to its internal relationship or tort relationship with the unauthorized agent.

The above is the relevant information and legal knowledge I have compiled for you. Therefore, Article 17 1 of the Civil Code is about agency. Once the agency relationship has ended, the original agent has no right to carry out any agency behavior, otherwise, he can only continue to sign relevant contracts to continue the agency, otherwise, those who engage in unauthorized agency behavior will be investigated for legal responsibility.