Apparent Agency in the Perspective of Civil and Commercial Distinction
Both civil and commercial agencies face the challenge of protecting the reliance of the counterparty. However, when regulating commercial transactions, the law must place greater emphasis on promoting efficiency and maintaining dynamic security. In civil agency, the principle of Causativeness should be applied to the act of granting agency, whereas in commercial agency, the principle of Abstraktionsprinzip should be followed.
In commercial agency, if the agent is incapacitated, the provisions of Article 145 of the Civil Code of the People's Republic of China shall be applied by analogy, ensuring that the acceptance of the authorized act and the act of agency remain valid. If the authorized act is invalid due to the principal’s reserved intention and the agent’s knowledge, such invalidity shall not be asserted against a bona fide third party. If the authorized act is revoked, the provisions of Article 85 of the Civil Code shall be applied by analogy, without affecting the legal relationship with the bona fide counterparty.
The agency authority of a commercial agent shall be interpreted expansively, allowing the agent to perform acts that are not directly authorized as long as they do not violate the purpose of the appointment. In civil apparent agency, the imputability of the agent shall be based on the principle of fault imputation, and good faith requires that the counterparty is unaware of the lack of authority and has no general negligence In contrast, commercial apparent agency shall follow the principle of risk imputation, meaning that if the agent is an insider of the organization, it is sufficient for the counterparty to lack gross negligence.