(1) The agent in the contract. Agency in contract is not a strict legal concept, it generally refers to the agency relationship arising in the process of contract conclusion and performance. Contract is the main legal means of commodity trading. With the prosperity of transactions and the continuous expansion of the market, various economic activities embodied in contracts are becoming more and more frequent and complex, and it is impossible for the parties to a contract to master all the contents and links of various forms of contracts. In order to make up for the limitations of the parties to the contract in this respect, people with professional knowledge are needed to complete the above work, so as to minimize disputes in the transaction. When signing a contract, the parties to the contract entrust a lot of specific work to people with professional knowledge, which is the first reason for the emergence of contract agency. In addition, even if the parties to the contract are familiar with the relevant systems of various contracts, due to the fast frequency, short cycle and many times of modern commodity transactions, coupled with the rapid development of communications and transportation, cross-regional and transnational commodity transactions are increasing day by day, and it is impossible for the parties to the contract to personally complete every contract-related transaction in time and energy. Therefore, contract agency is a very common agency. (2) the agent in operation. In the process of commodity management, investors themselves entrust others with all business activities, and they do not directly engage in business activities. The agent is also engaged in all business-related affairs except signing contracts. Because this kind of agent is not engaged in a specific transaction, but a comprehensive transaction related to business activities, it is generally called an agent in operation. (3) Foreign trade agency. The foreign trade agency system is also called the foreign trade agency system in China. Refers to the foreign trade companies in China, as agents of domestic users and supply departments, sign import and export contracts on their behalf and charge a certain commission or handling fee. (4) Intellectual property agency. Intellectual property agency can be divided into three categories: patent agency, trademark agency and copyright agency. The so-called patent agency means that the patentee or the patentee entrusts a person with specialized knowledge to handle the above business in the name of the applicant in the process of applying for a patent, conducting patent licensing trade or resolving patent disputes. The duties performed by a trademark agent for the trademark owner are roughly the same as those performed by a patent agent for the patent owner. For example, accepting the entrustment of the client to handle trademark registration and renewal, handling trademark use licenses, filing lawsuits for infringement of trademark exclusive rights and handling other businesses. Copyright, also known as copyright, is the exclusive right given by law to authors to create literary, artistic and scientific works, including personal rights and property rights. The realization of copyright property rights usually requires publishing, signing licensing contracts and copyright transfer. The person who accepts the entrustment of the copyright owner to engage in these activities is a copyright agent. (5) Restrict the agency of persons with civil capacity and persons without civil capacity. Agents in civil activities of persons with limited capacity for civil conduct mainly include the following categories: First, close relatives and guardians of persons with limited capacity for civil conduct. According to Article 14 of the General Principles of Civil Law: "The guardian of a person without or with limited capacity for civil conduct is his legal representative." Specifically, guardians of persons with limited capacity include the following: ① Parents of minors are guardians of minors. If a minor's parents are dead or have no guardianship ability, the guardian shall be the person who has guardianship ability: if grandparents, brothers and sisters, other close relatives and friends are willing to assume guardianship responsibility, the consent of the residents' committee and villagers' committee in the minor's place of residence shall be obtained. Guardians of mental patients with limited capacity for civil conduct include: spouses, parents, adult children, other close relatives and other close relatives and friends who are willing to assume guardianship responsibilities, with the consent of the residents' committee or villagers' committee of the unit or domicile of the mental patient. According to article 14 of the Supreme People's Court's Opinions on Implementing the General Principles of the Civil Law of People's Republic of China (PRC), the above provisions on guardians of minors and mental patients are in a certain order. Generally speaking, for minors, parents should be guardians first, and grandparents should be guardians only if their parents die or have no guardianship ability, and so on. However, this order is not absolute. When the person with guardianship qualification in the previous order has no guardianship ability or is obviously unfavorable to the ward, the court may choose the best guardian from the latter order. If there is any dispute about being a guardian, it shall be designated by the unit where the person with limited capacity for civil conduct works or the villagers' committee or residents' committee of his domicile among his near relatives. If the designated person refuses to accept it, the people's court shall make a ruling. For example, Wang is a mental patient. His parents died when he was young. One sister is abroad, one brother works in the city where Wang lives, and his grandparents are both in the countryside and are old. Because Wang suffers from mental illness and can't take care of himself, his brother, sister, grandfather and grandparents are unwilling to bear the responsibility of guardianship. The local neighborhood committee appointed his brother as the guardian, but his brother refused to be the guardian and appealed to the court. The court maintained the designation of the neighborhood Committee from the perspective of effective guardianship of the ward. Determining the guardian of a person with limited capacity is the premise of determining his legal representative. Once a person is identified as the guardian of a person with limited capacity, he will of course become the legal representative of the person with limited capacity. Second, if the person with limited capacity is a minor, his parents' unit or the residents' committee, villagers' committee or civil affairs department of the minor's domicile; If the person with limited capacity for civil conduct is a mental patient, it shall be the residents' committee, villagers' committee or civil affairs department of the unit or domicile where the mental patient works. All kinds of agents mentioned here are qualified as guardians and can be legal agents only if the close relatives of the above-mentioned persons with limited capacity do not have guardianship ability or cannot determine guardians and cannot be legal agents. The civil agency of a person without capacity for civil conduct is basically the same as that of a person with limited capacity for civil conduct in terms of legislative purposes, types of agents, causes and forms of agents, rights and obligations of agency relationships, etc. What needs to be explained are two special aspects: one is a civil activity agent without civil capacity, and the principal is a person without civil capacity. The so-called incompetent person refers to a person who cannot participate in civil activities independently and obtains civil rights and sets civil obligations for himself through his own actions. There are two kinds of incapacitated people: minors under the age of ten and mental patients who can't recognize their own behavior. Second, there is no so-called civil activity regulation for the agent of a person without civil capacity, which is suitable for his age, intelligence and health. All civil activities that a person without capacity for civil conduct needs to carry out must be carried out by his legal representative or a person entrusted by his legal representative. Except for acts that are purely beneficial and do not harm others, all acts carried out by people without capacity are invalid.
Legal objectivity:
Agents can be divided into different types from different angles. The most important classification method is to divide agents into entrusted agents, legal agents and appointed agents according to the different reasons for the emergence of agency rights. (1) Entrusted agent, legal agent and appointed agent. Article 64 of China's General Principles of Civil Law stipulates: "Agency includes entrusted agent, legal agent and appointed agent", and (1) entrusted agent refers to an agent who acts on the basis of the authorization of the principal. Because it is an agent based on my will, my will is the premise of agency, so it is also called meaning agency. Entrustment is the act of entrusting the meaning of entrustment to an agent. It is the basis of principal-agent generation. China's General Principles of Civil Law clearly uses such terms as "power of attorney" and "power of attorney" in the provisions on the principal-agent relationship, which shows that China's General Principles of Civil Law also takes the authorization behavior as the basis for the principal-agent relationship. It is generally believed that agency authorization is not a contractual relationship, but a unilateral legal act, which does not require the consent of the principal, and only the expression of the principal's will can take effect. Article 65 of China's General Principles of Civil Law stipulates that the power of attorney only needs the signature or seal of the client. Under normal circumstances, when I complete the authorization, I often establish a contractual relationship with my agent as the basic legal relationship on which the agency depends. Therefore, the entrustment contract is the reason or basis of entrustment, and the entrustment agent becomes the means for the trustee to handle the entrusted affairs. However, the establishment and entry into force of the entrustment contract does not of course produce the power of agency, and the power of agency only arises when the principal makes unilateral entrustment. In addition, the labor contract relationship, partnership relationship and job relationship have no entrustment contract relationship, and entrustment authorization can also be generated. It is generally unnecessary to entrust an agent with authorization. Paragraph 1 of Article 65 of the General Principles of the Civil Law stipulates: "The agency of civil juristic acts can be in written form or oral form. If the law requires it to be in writing, it shall be in writing. " When written form is required by law, oral form is invalid. (2) Legal Agent A legal agent is an agent who enjoys the right of agency according to law. This kind of legal provision, that is, legally authorized act, is made by the national legislature for the special needs of protecting citizens and maintaining transaction order, and stipulates that civil subjects with specific identities have the right to represent other people's civil legal acts. Obtaining the qualification of legal agent requires neither the expression of the parties' will nor the designation of the people's court, which is the distinctive feature of legal agent. Legal agency usually applies to the case that the principal is a person with no or limited capacity for civil conduct. Articles 12 and 13 of the General Principles of Civil Law stipulate that a civil act that a person with limited capacity for civil conduct cannot independently carry out according to law shall be carried out by his legal representative or with the consent of his legal representative; A person without capacity for civil conduct shall be represented in civil activities by his legal representative. Article 14 of the General Principles of Civil Law stipulates: "The guardian of a person without or with limited capacity for civil conduct is his legal representative". Therefore, a person with the qualification of guardian enjoys legal representation according to law. As a legal agent, a guardian should follow the code of conduct stipulated in Article 18 1 of the General Principles of Civil Law and act in the spirit of benefiting the ward. If the guardian violates the requirements of guardianship duties or infringes upon the legitimate rights and interests of the ward, he shall bear the adverse consequences arising therefrom; If the ward suffers losses as a result, he shall be liable for compensation. (3) An agent appointed on the basis of the designated behavior of the people's court or the relevant unit is called an appointed agent. The so-called "related unit" here refers to the organization that has the obligation to protect the legitimate rights and interests of the principal according to law. The people's court may appoint agents for citizens who are unable to handle their own affairs in person or legal agents or entrusted agents entrusted according to law. For example, the property custodian is appointed for the missing person, and the litigation agent is appointed for the person without litigation capacity who has no legal representative or his legal representative shirks the agency responsibility. If the court cannot appoint an agent, the unit that has the obligation to protect its legitimate rights and interests according to law shall appoint an agent for it. (2) General agents and special agents. The division between general agent and special agent is based on the scope of agent authority. General agency means that the agent enjoys the power of agency in a general sense, that is, the scope of his power of agency is unlimited, and the agent can represent the principal in any civil activities permitted by law. Therefore, general agency is also called discretionary agency or general agency. Special agency means that the scope of the agent's authority is limited, and the agent can only engage in civil activities on behalf of the principal within a limited scope of authority. If beyond the scope of authority, ultra vires agency will occur, and the actor will bear the corresponding legal consequences. An agent in a special agent can't carry out any civil activities permitted by law like an agent in a general agent, but can only act as an agent within the scope of authorization, so it becomes a partial agent or a specific agent. (3) Direct agency and indirect agency. Direct agency and indirect agency are a division method in many civil law countries. There are two grounds for its division: first, in whose name does the agent act, that is, in the name of the principal or the agent himself; The second is whether the consequences of agency behavior are directly borne by the principal or are borne by the agent first and then passed on to the principal. (4) Independent agents and * * * agents. According to the number of agents, agents can be divided into single agents and * * * same agents. If there is only one agent, and the power of agency is exercised by him alone, it is called a separate agent or an independent agent. If there are two or more agents, and the power of attorney is made by two or more peers, it is called the same agent. (5) Agent and compound agent. This kind of division between agent and compound agent is based on whether the agent is my agent or not. An agent who personally acts as an agent in the name of the principal is called the principal, also known as the general agent; If an agent does not represent himself but is entrusted by an agent, it is called re-agency, also known as re-agency, re-agency or re-agency. The person entrusted by the agent is called a compound agent.