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当下民法典编纂呼声越来越高,这是个偏向于立法论的时代。我国《民法通则》第66条第1款以及合同法第48条第1款对无权代理进行了规定,在狭义无权代理人对善意相对人之责任承担方面,却只是简单的规定了可以请求承担民事责任,然而对于责任承担之范围却并未如德国、日本以及我国台湾地区立法那么精确。因此,本文以我国台湾地区民法学说与判例为视角,先梳理无权代理人责任承担之理论基础相关学说,进而根据代理人和相对人之主观状态在信赖利益以及履行利益之间进行衡平与取舍。
Nowadays, the compilation of civil codes is getting louder and louder, which is an era that is biased toward the theory of legislation. Article 66 (1) of China’s General Principles of Civil Law and Article 48 (1) of the Contract Law provide for non-authorized agents. In the narrow sense, the power of attorney to assume responsibility for relatives in good faith simply stipulates that However, the scope of liability is not as accurate as the legislation of Germany, Japan and Taiwan in our country. Therefore, based on the theory of civil law in Taiwan of China and the precedents, this paper first combs the theoretical basis related doctrine of non-authorized agent’s responsibility, and then balances trust and benefit according to the subjective state of agent and relative .