Abstract
In the case of equity transfer contracts, procuration by any family member of a shareholder constitutes an unauthorized agency without affirmative authorization or ex post facto ratification.
Collegial Bench for the Second Instance: Xianhe Jiang, Yingxin Zhang and Yanzhu Gao
Edited by Ming Li; translated by Xiaohua Zhu and Ting Sun
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Notes
- 1.
This article is now included as Article 172 of the Civil Code. Infra.
- 2.
This article is now included as Article 172 of the Civil Code: “(w)here an actor still performs an act of agency without a power of agency, beyond his power of attorney, or after his power of attorney terminates, the act shall be valid if the opposite party has reason to believe that the actor has the power of agency.” Infra.
- 3.
Duldungsvollmacht arises from German case law, which refers to the case where the principal acquiesces in the act of any other person as his or her agent, and the opposite party, follows the principle of good faith, may and de facto does interpret such acquiescence of the principal as the accordance to such person of the power of agency, such person shall thus be deemed to have the power of agency by law. Such intended acquiescence is sufficient to bring the principal the liability equivalent to an authorized agency. According to German scholar Larenz,“(t)he prerequisite for Duldungsvollmacht lies in the fact that such personal knows of the act of the unauthorized agency yet without any intervention. Under such circumstance, there exists neither internal authorization nor external authorization, but the Rechtsschein of the power of agency knowingly made by the principal, with the consequent responsibility held thereby. To avoid misunderstanding, we can only call such circumstance Duldungsvollmacht”. “Silence”, as one of the causes of apparent agency, has as its typical basis under comparative law the Duldungsvollmacht created in German case law. The Federal Court of Justice (Bundesgerichtshof) “held at first that Duldungsvollmacht was merely a special form of implied authorization of the power of agency, yet it subsequently changed its opinion, holding that a distinction should be made between the two in that: under the circumstance of Duldungsvollmacht, the principal lacks the intent of authorizing the power of agency”.参见[德]卡尔·拉伦茨: 《德国民法通论》(下册), 王晓晔等译, 法律出版社2003年版, 第892页; Christoph Hirsch, a.a.O., SS. 320, 321; 王泽鉴: 《债法原理》(第1册), 中国政法大学出版社2001年版, 第320页。
- 4.
This article is now included as Article 140 of the Civil Code.
- 5.
参见冉克平: 《民法典视野下“本人沉默视为同意”规则的再造》, 载《当代法学》2019年第4期。
- 6.
In the Munich Commentary on the Civil Code (Münchener Kommentar zum Bürgerlichen Gesetzbuch), after collation of the relevant precedents, German scholar Schramm believes that, a Duldungsvollmacht arises where the following requirements are met: (1) a person has no power of agency, yet has appeared as an agent for a long time and repeatedly; (2) the principal has aware of this situation but never intervened although he or she could have; (3) when executing the disputed juristic act, the opposite party knows the long-term act of the agent and the acquiescence of the principal, and follows the principle of good faith and takes into account the trade practices, it is reasonable for the opposite party to interpret such acquiescence of the principal as that the agent has already obtained the power of agency, and the opposite party has in fact made such interpretation. However, some scholars believe that the establishment of Duldungsvollmacht does not require the agent to act as an agent for a long time and repeatedly, sometimes Duldungsvollmacht can be established in just a certain transaction where the agent act as an agent. Some scholars even believe that, when executing a juristic act, if the opposite party knows that the principal has tolerated such juristic act, there is no need for the agent’s act to be long-term and repetitive, and such acquiescence is sufficient to constitute the Rechtsschein of the power of agency. MünchKomm/Schramm, §167 Rn.47. Reinhard Bork, Allgemeiner Teil des Bürgerlichen Gesetzbuchs, 2.Aufl., Mohr Siebeck, Tübingen, 2006, S.585. Erman/Palm, §167 Rn.15.
- 7.
German scholars hold that, the principal’s sheer negligence in the apparent agency is obviously different from his or her intended acquiescence on the exercising of the power of agency. 参见[德]迪尔特·梅迪库斯: 《德国民法总论》, 邵建东译, 法律出版社2000年版, 第733页。
- 8.
参见沈鹏云: 《试论容忍代理的构成》, 载https://www.docin.com/touch/detail.do?id=1499166240, 最后访问日期: 2019年9月29日。
- 9.
参见公维亮: 《法院依 “夫妻表见代理权”认定股权代持的裁决之商榷》, 载http://www.sohu.com/a/216598202_725762, 最后访问日期: 2019年9月29日。
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Jiang, X., Luo, F. (2022). Hainan Lingshui Baoyu Co., Ltd., Li X (A), et al. v. Sanya Zhicheng Color Printing Co., Ltd., Xu X, et al.. In: Selected Cases from the Supreme People’s Court of the People’s Republic of China. Library of Selected Cases from the Chinese Court. Springer, Singapore. https://doi.org/10.1007/978-981-16-8410-4_21
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