The Effect Attribution of Exercising the Authority of Duty Agency beyond the Restrictions of Authority
Article 170(2)of the Civil Code raises the issue of how to handle its sys-tematic relationship with Article 172 of the Civil Code in legal doctrine.Scholars and judges have different understandings of this issue.According to its normative construction characteris-tics,Article 170(2)can play two normative roles.One is that the restrictions on the scope of authority of the duty agent imposed by legal persons or unincorporated organizations do not have any effect on a bona fide counterpart.The effect of duty agency can be determined in accord-ance with Article 170(1)of the Civil Code.The other is that if the counterparty knows or should know that the exercise of the power of agency exceeds the scope of authority,the act of agency shall not have any effect on the legal person or unincorporated organization.Whether the counterparty knows or should know that the exercise of the power of agency exceeds the restric-tions of the scope of authority depends on whether the legal person or unincorporated organiza-tion is willing and able to(if willing)provide evidence to prove the counterparty's knowledge.Compared to Article 172 of the Civil Code,Article 170 actually establishes a legal norm that can independently play a role based on the theory of agency authority independence.Article 21(3)of the Judicial Interpretation of the General Principles in the Book on Contract of the Civil Code expresses the particularity of Article 170(2)of the Civil Code by stating that,the actions of agency that exceed the scope of authority shall have effect on legal persons or unincorporated organizations(general rule),except that the latter can prove that the other party knows or should know of the scope of authority(exceptional rule).Exceeding the scope of authority may also manifest as exceeding the usual boundaries of authority or statutory limitations.Article 21(1)and Article 21(2)of the Judicial Interpretation contain detailed provisions on this matter.These provisions are essentially the result of a negative interpretation of Article 170(1)of the Civil Code.According to these provisions,if a duty agent engages in civil legal acts with the counterparty that are not matters that can be handled under normal circumstances according to their authority,such acts constitute unauthorized agent,and the attribution of their effects should be determined in accordance with Article 171 of the Civil Code.If the duty agent has not received special authorization,but the other party,after fulfilling the necessary duty of care,believes that the agent has the power of agency,his duty agency constitutes an apparent agency,and its effect is determined according to Article 172 of the Civil Code.In terms of the protection of bona fide counterparties,Article 21 of the Judicial Interpretation establishes two kinds of norms with different construction methods.
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