Discussion on the allocation of the burden of proof of apparent agency
Article 91 of The Interpretation of the Civil Procedure Law establishes the basic principles for the allocation of the burden of proof in China with the norms of theory as the blueprint,which aims to establish the allocation of the burden of proof on the basis of the classification of substantive norms.Article 172 of The Civil Code stipulates the basis of the right of the counterparty to request the principal to fulfil the content of the contract under the apparent agency,laying down the benchmark for the allocation of the burden of proof of apparent agency,but there are imperfections and contradictions in the provisions of the relevant judicial interpretations.Starting with the aim to realize the establishment of the system,and based on the risk allocation in relevant substantive norms and the systematic interpretation,we should consider the agent's attributability as one of the constituent elements of the apparent agent;for the allocation of the burden of proof about the attributability and good faith and no negligence,it is necessary to follow the norms of theory,and make it clear that attributability belongs to the norms of the impairment of rights,good faith and no negligence element belongs to the norms of the occurrence of rights,and the burden of proof is respectively on the principal and the counterparty.
apparent agencyallocation of the burden of proofnorms of theoryattributabilitygood will without negligence