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The Comparison between Rules of Brokerage and Rules of Undisclosed Agency

Author: WangTianZheng
Tutor: WuJian
School: East China University of Political Science
Course: Economic Law
Keywords: Brokerage Undisclosed Agency Right of intervention Right of election
CLC: D913
Type: Master's thesis
Year: 2010
Downloads: 125
Quote: 1
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Abstract


There are great differences in theoretical bases and legal practices between the civil law system and the common law system. The civil law system , based on the Theory of Differentiation, strictly distinguishes entrusted contract from authorization of agency power , which emphasizes on the external relations of agency and lays emphasis on the safety of a third party. The civil law system, as a private law system based on the Theory of Juristic Act,inevitably leads to that acting in the principal’s name is indispensible to the agency .The common law system, based on the Theory of Equivalence , regards agency as the legal consequence of entrustment and the agent’s act is treated equivalent to the principal’s act, which emphasizes on the internal relations of agency and lays emphasis on the safety of the principal. The agency law of the common law system does not emphasizes on the name and does not treat acting in the principals name as essential. The different modes of legal thinking of the two legal systems result in different agency system, thus lead to different system arrangements, which are rules of brokerage to the civil law system and rules of undisclosed agency to the common law system, when facing the situation that the agent acts for the principal in the name of himself in relation to a third party. Based on the historical study and comparative research of the agency system of the two legal system, this essay utilizes the historical method and comparative method to study the historical evolution , legal relation and arrangement of system of the rules of brokerage and the rules of undisclosed agency . With the method of case studying , this essay compare the rules of brokerage with the rules of undisclosed agency from the legal principle level and the technical level, trying to find the technical difference and the hidden legal principle causes . Based on this, the essay analyzes and comment on the related system on China’s litigation, holding an affirmative attitude toward the introduction of the rules of undisclosed agency to the Chinese Contract Law ,and also puts forward the suggestion that on the completion of the system of undisclosed agency, the system of brokerage is to be eliminated in order to avoid the conflict of legal implementation.

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