论无权代理责任

无权代理的责任性质是法定担保责任和信赖责任,其归责基础为无过错责任,但其责任范围是履行利益还是信赖利益,取决于代理人有无过错.对该规定应进行目的性限缩解释,形成对积极信赖责任和消极信赖责任协调保护的双重结构,以填补规范漏洞.相对人为恶意时代理人内部免责,但要对被代理人承担侵权责任.

On the Unauthorized Agency Responsibility

The unauthorized agency responsibility is a statutory guarantee responsibility or reliance responsibility, it is a no-fault liability, but the scope of the unauthorized agency responsibility depends on the fault of the agent or not, it is fulfillment benefit or reliance interest. We must be subject to restrictive interpretation according to legislative purpose, and form a dual structure of coordination protection for positive reliance responsibility and negative reliance responsibility, so as to fill normative loopholes. When a third party is malicious, the agent does not assume the unauthorized agency responsibility, but the agent has tort liability for the principal.